In re Eight Grand Jury Subpoenae Duces Tecum

701 F. Supp. 53, 1988 U.S. Dist. LEXIS 13050, 1988 WL 130259
CourtDistrict Court, S.D. New York
DecidedNovember 16, 1988
DocketNo. M11-188
StatusPublished
Cited by1 cases

This text of 701 F. Supp. 53 (In re Eight Grand Jury Subpoenae Duces Tecum) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Eight Grand Jury Subpoenae Duces Tecum, 701 F. Supp. 53, 1988 U.S. Dist. LEXIS 13050, 1988 WL 130259 (S.D.N.Y. 1988).

Opinion

OPINION & ORDER

EDELSTEIN, District Judge:

A grand jury sitting in this district issued eight subpoenas duces tecum on July 5, 1988 to an individual (“John Doe”) and five companies of which Doe is a shareholder (“A,” “B,” “C,” “D,” and “E”). The government has moved for an order holding Doe, A, B, and C (“Movants”) in contempt of court. The Movants, however, have cross-moved for an order (1) pursuant to Fed.R.Crim.P. 17(c) quashing the eight subpoenas; (2) granting an evidentiary hearing and pre-hearing discovery on the cross-motion to quash the subpoenas; (3) pursuant to Fed.R.Crim.P. 6(e) sealing all papers filed and testimony taken in connection with these cross-motions; and (4) granting the Movants 30 days from the date of entry of a court order to respond to those subpoenas not quashed by the court.

BACKGROUND

On December 12, 1986, federal agents executed a search warrant at the offices of the Movants1 and seized ninety-one cartons of property. On December 31, 1986, Mov-ants’ attorney notified the United States Attorney’s Office that many of the seized documents were outside the scope of the warrant, and requested the documents be returned. Eventually, Movants compiled a 204 page list of those documents they claimed were seized outside the scope of the warrant. On April 25, 1988, after reviewing the first four cartons of documents, the Assistant United States Attorney in charge of the investigation notified the Movants attorney that many of the documents seized in fact appeared to be outside the scope of the warrant. Finally, on June 14, 1988, the Movants made a motion for the return of the illegally seized documents, pursuant to Fed.R.Crim.P. 41(e). The motion was dismissed as moot when the government agreed to return all the documents seized on December 12, 1986.

On July 5, 1988, federal agents returned the documents in dispute to the Movants’ offices. After the documents had been unloaded at the Movants’ office, the agents served the Movants’ attorney with two subpoenas directed to Doe and four directed at the custodian of records of Corporations A, B, D, and E. One of the subpoenas to Doe called for production of telephone log books, message books, and other records that had been outside the scope of the original search warrant (“Doe Telephone Subpoena”). The five remaining subpoenas traced the language of the original search warrant (“Copycat Subpoenas”). On August 8, 1988, two subpoenas, identical to the Doe Telephone Subpoena (collectively, “Telephone Subpoenas”), addressed [55]*55to Corporations B and C were served on Doe’s attorney.

The Movants contend that all eight subpoenas should be quashed. The Copycat Subpoenas, according to Movants, serve no legitimate investigative purpose and serve merely to cure the taint of the original illegal search. Movants further contend that the Copycat Subpoena directed to Doe violates his fifth amendment privilege against self-incrimination. In addition, Movants contend that service of the two Copycat Subpoenas directed at Corporations D and E was improper because Doe is not the custodian of records and further, production of such documents would violate his fifth amendment privilege against self-incrimination.

DISCUSSION

A. Grand Jury Abuse

The grand jury is deeply rooted in the American criminal justice system. Its twofold purpose is to determine whether there is probable cause to believe a crime has been committed and to protect citizens from unfounded criminal charges. See Branzburg v. Hayes, 408 U.S. 665, 686-87, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972). In order to achieve these twin aims, the grand jury is accorded wide latitude to investigate. See Costello v. United States, 350 U.S. 359, 361-62, 76 S.Ct. 406, 407-08, 100 L.Ed. 397 (1956). As noted by the Supreme Court: “ ‘A grand jury’s investigation is not fully carried out until every available clue has been run down and all witnesses examined....’” United States v. Dionisio, 410 U.S. 1, 13, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973) (quoting United States v. Stone, 429 F.2d 138, 140 (2d Cir.1970)).

Nevertheless, the grand jury’s power to investigate is subject to some limitations. The grand jury may not, for example, violate a valid privilege. Thus, it may not require a witness to answer questions in violation of the witness’s fifth amendment privilege against self-incrimination. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The grand jury also may not issue a subpoena so broad as to impinge unreasonably on legitimate fourth amendment rights. Finally, the grand jury may not obtain evidence for any purpose, but only to pursue legitimate goals. In this regard, the grand jury may not pursue its investigation for the sole purpose of preparing a pending indictment for trial. See United States v. Dardi, 330 F.2d 316, 336 (2d Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964).

Against this background of the grand jury’s broad but circumscribed powers, the Movants contend that the subpoenas at issue in this case constitute an abuse of the grand jury process. The material demanded by the subpoenas, according to the Movants, was in the government’s possession for nineteen months prior to the issuance of the instant subpoenas. The Movants contend that the government has misused the seized documents by providing access to various government agencies outside the Justice Department during the months that material was in the government’s possession. The Movants further reason that the documents could have been —and in fact may have been — shown to the grand jury during that time. The Movants thus conclude that the subpoenas were not issued for a valid investigative purpose, but merely to cure the perceived constitutional taint created by the concededly overbroad search on December 12, 1986.

The question is a close one. The government, by its own account, has apparently allowed outside agencies including Postal Inspectors, Internal Revenue Agents, and, most notably, agents of the Securities Exchange Commission, access to the seized materials. The court does not favor such investigative tactics by the government. Nevertheless, this is neither the appropriate time nor forum to remedy this situation. If grand jury material has been im-permissibly revealed to government agencies, the remedy would lie in a proceeding instituted by such agency. See generally Fed.R.Crim.P. 6(e).

With respect to the purpose of the subpoenas, the government avers that there is [56]*56a legitimate investigative purpose for such subpoenas.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re ICS Cybernetics, Inc.
107 B.R. 821 (N.D. New York, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
701 F. Supp. 53, 1988 U.S. Dist. LEXIS 13050, 1988 WL 130259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-eight-grand-jury-subpoenae-duces-tecum-nysd-1988.