Almond et al v. USDC-R.I.

Opinion

Almond et al v . USDC-R.I. CV-93-19-B 05/31/94

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lincoln C . Almond, Edwin J. Gale and Michael Davitt

v. Civil N o . C . 93-19-B (D.N.H.)

CA. 92-0663 (D.R.I.)

U.S. District Court for the District of Rhode Island, et a l .

O R D E R

The United States Attorney and his assistants move that I

reconsider and expand the scope of my April 1 8 , 1994 Order

granting them summary judgment on their challenge to the validity

of the federal and state versions of Rhode Island Rule of

Professional Conduct 3.8(f). 1 Although neither version of the

rule differentiates between grand jury and trial subpoenas, I

noted at the Order's outset that the prosecutors challenged the

rules "only to the extent that they require pre-service judicial

1 Rule 3.8(f) requires prosecutors to obtain judicial approval before subpoenaing attorneys to give evidence "concerning a person who is or was represented by the lawyer when such evidence was obtained as a result of the attorney-client relationship." The rule was adopted by the Rhode Island Supreme Court and later incorporated by reference into the local rules of the Federal District Court for the District of Rhode Island. The facts relating to the prosecutors' motion for summary judgment are fully set out in the April 18 Order, and I assume the reader's familiarity therewith.

review of subpoenas issued on the grand jury's behalf." Slip o p .

at 2 n.1. I therefore limited my analysis and holding to this

issue, declaring the rules invalid as applied to grand jury

subpoenas because they impermissibly infringe upon the grand

jury's historical independence from its constituting court. The

prosecutors now urge me to broaden my holding and invalidate the

rules' application to trial subpoenas. They argue that their

motion for summary judgment encompassed a challenge to this

application of the rules, and that their arguments regarding

grand jury subpoenas are dispositive of the trial subpoena issue.

For the following reasons, I grant the prosecutors' motion for

reconsideration, but award summary judgment to defendants on the

issue of whether the federal and state versions of Rule 3.8(f)

may be applied to federal prosecutors conducting criminal trials.

I. DISCUSSION

A. Motion for Reconsideration

The prosecutors concede that their summary judgment motion

"focus[ed] primarily on the rules' application to grand jury

subpoenas." However, they argue that the "gist" of their

challenge remained the same as that set out in their complaint --

a challenge to the application of the two rules to federal

prosecutors "supervising grand juries or conducting criminal

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trials." They contend that their summary judgment motion focused

on grand jury subpoenas merely because "[t]he bulk of the

caselaw, and consequently, the strongest arguments happen to

relate to the rules' applicability to grand jury subpoenas."

The prosecutors overestimate the clarity of their summary

judgment efforts. Far from conveying the claimed bipartite

"gist," the prosecutors' references to trial subpoenas were

passing at best. Nevertheless, they did raise the issue in their

complaint and in their summary judgment motion's request for

relief. Accordingly, I give the prosecutors the benefit of the

doubt and grant their motion for reconsideration.

B. The Merits

The prosecutors contend that summary judgment on the trial subpoena issue is warranted because this application of Local

Rule 3.8(f), like its application to grand jury subpoenas,

exceeds the federal district court's rulemaking power. They also

contend that, absent a valid local rule, enforcement of the state

rule against federal prosecutors violates the Supremacy Clause.

I address these contentions seriatim.

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1) The Local Rule

To determine the validity of Local Rule 3.8(f), I must

consider [1] whether the rule conflicts with an Act of Congress; [2] whether the rule conflicts with the rules of procedure promulgated by [the Supreme] Court; [3] whether the rule is constitutionally infirm; and [4] whether the subject matter governed by the rule is not within the power of a lower federal court to regulate.

Frazier v . Heebe, 482 U.S. 6 4 1 , 654 (1987) (Rhenquist, C.J.,

dissenting) (brackets added). The prosecutors based their

challenge to the application of Local Rule 3.8(f) to grand jury

subpoenas on the second and fourth inquiries, arguing that the

rule conflicts with Fed. R. Crim. P. 17 and exceeds the District

Court's inherent power over the grand jury. In my April 18

Order, I rejected the former argument but granted summary

judgment on the latter. Specifically, I held that, as applied to

grand jury subpoenas, Local Rule 3.8(f) exceeds the federal

district court's rulemaking power because the court lacked the

supervisory power to curtail the grand jury's traditional

independence. In challenging the rule's application to trial

subpoenas, however, the prosecutors do not contend that this

application would exceed the district court's supervisory

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authority.2 Instead, they argue that the rule conflicts with

Fed. R. Crim. P. 17. 3

In the April 18 Order, I rejected this contention for two

reasons.

2 I note that, at least with respect to the scope of the District Court's supervisory authority, trial-related matters stand on a footing very different from those relating to the grand jury. See United States v . Williams, 112 S . C t . 1735, 1744 (1992) ("any power federal courts have to fashion, on their own initiative, rules of grand jury procedure is a very limited one, not remotely comparable to the power they maintain over their own proceedings"); also compare United States v . Nixon, 418 U.S. 683, 699-700 (1974) (a trial subpoena for documents must clear three hurdles -- relevancy, admissibility and specificity) with United States v . R. Enterprises, 498 U.S. 2 9 2 , 297-99 (1991) (Nixon standards do not apply to grand jury subpoenas because broad nature of grand jury's investigative function requires freedom from procedural detours and delays). However, I do not address this issue because it was not briefed.

I also note that, if the rule were applied to trial subpoenas pursuant to the standards contained in its accompanying commentary, its validity would depend upon the scope of the court's supervisory authority over its own processes. Given the prosecutors' failure to brief the supervisory authority issue, I do not address the justiciability or merits of this potential application of the rule.

3 The prosecutors also argue, based on the commentary to Fed.

R. Crim. P. 57 and the Third Circuit's decision in Baylson v . Disciplinary Bd., that Local Rule 3.8(f) is invalid because it "goes beyond the 'matters of detail' contemplated by [Rule] 57." Baylson, 975 F.2d 1 0 2 , 108 (3d Cir. 1992), cert. denied, 113 S . C t . 1578 (1993). As I stated in my April 18 Order, I reject this conclusion because the commentary to Rule 57 cannot limit the district courts' rulemaking power in ways not prescribed by the Rule's text.

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First, the plain meanings of the two rules do not conflict. Local Rule 3.8(f) requires judicial review after a subpoena has been issued but before it is served. Rule 1 7 , in contrast, is concerned with the form, mechanics and post-service enforcement of subpoenas. It neither expressly nor implicitly addresses post-issuance, pre-service judicial intervention in the subpoena process. Rule 17 thus leaves a void in subpoena practice that is filled by Local Rule 3.8(f). Consequently, at least on their face, the two rules are complimentary, not inconsistent.

Second, Rule 17's failure to address pre-service judicial intervention in the subpoena process does not preclude local rulemaking in this area. As a general matter, 28 U.S.C. § 2071 and Fed. R. Crim. P. 57 indicate that, absent affirmative evidence to the contrary, the Federal Rules' silence on a particular subject should not be construed as preclusive. This is especially true with respect to Rule 17 since the district courts' widely-recognized power to entertain motions to quash testimonial subpoenas requires district courts to exercise authority not granted by the rule. That this remedy exists, despite not being expressly authorized by Rule 1 7 , indicates that the rule's silence with respect to a particular subject matter was not meant to be preclusive.

Slip o p . at 17-18 (citations omitted).

Given that Rule 17 does not differentiate between grand jury

and trial subpoenas, but instead sets out the basic mechanics

governing all types of subpoenas, the above analysis applies with

equal force to both applications of Local Rule 3.8(f).

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2) The State Rule

Since the state version of Rule 3.8(f) has been incorporated

by reference into the local rules of the Federal District Court

for the District of Rhode Island, the rule has become federal

law. See United States v . Klubock, 832 F.2d 649, 651 (1st C i r . ) ,

vacated but supplementing 832 F.2d 664 (1st Cir. 1987) (en banc)

(citing United States v . Hvass, 355 U.S. 5 7 0 , 574-75 (1958)).

Consequently, the prosecutors necessarily premise their challenge

to the state version of Rule 3.8(f) on the invalidity of the

local rule, arguing that "because the federal local rule is

invalid, the State rule violates the Supremacy Clause of the

Constitution." As detailed above, however, I find that Local

Rule 3.8(f) may be validly applied to trial subpoenas. The

prosecutors' Supremacy Clause challenge therefore necessarily fails. See id.

II. CONCLUSION

For the foregoing reasons, the prosecutors' motion for

reconsideration (document n o . 23) is granted. However, I deny

their request for summary judgment on this issue. Instead,

because I have rejected the only arguments advanced by the

prosecutors in challenging the application of the rule to trial

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subpoenas, I grant defendants' cross-motions for summary judgment

on this issue (document nos. 12 and 1 7 ) .

SO ORDERED.

Paul Barbadoro United States District Judge May 3 1 , 1994

cc: Lauren Jones, Esq.

S . Michael Levin, Esq. John Dolan, Esq. Warren Nighswander, Esq. James Gillis, Esq., US DOJ Sara Criscitelli, Esq., US DOJ Clerk - USDC, R.I. Margaret Curran, Esq., USA