In re Grand Jury Proceedings

514 F. Supp. 90, 1981 U.S. Dist. LEXIS 12108
CourtDistrict Court, E.D. Pennsylvania
DecidedMarch 31, 1981
DocketNo. G.J. 80-264-2
StatusPublished

This text of 514 F. Supp. 90 (In re Grand Jury Proceedings) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Grand Jury Proceedings, 514 F. Supp. 90, 1981 U.S. Dist. LEXIS 12108 (E.D. Pa. 1981).

Opinion

MEMORANDUM OPINION

BECHTLE, District Judge.

By Order of March 23, 1981, the Court denied a motion to quash three subpoenas commanding the recipients to appear before a grand jury to testify, provide photographs and handwriting exemplars and to bring records pertaining to a corporation of which one of the witnesses is custodian of records. The subpoenas themselves do not state which criminal statute is involved in the grand jury’s investigation; however,, a one-page form notice, entitled “ADVICE OF RIGHTS,” accompanied the subpoenas and stated that the grand jury was investigating possible violations of 18 U.S.C. § 1341, the federal mail fraud statute. Two days after the motion to quash was filed, the Assistant United States Attorney supervising the investigation filed an answer to the motion. Included was an affidavit designed to comply with the requirements of In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973). Also attached as an exhibit was a letter from the supervising attorney to the movants’ counsel advising him that one of the movants is a target of the investigation and the other is not.1

In the Schofield affidavit, the supervising attorney affirmed that he was “supervising a grand jury investigation in the Eastern District of Pennsylvania concerning alleged violations of Title 18, United States Code, Section 1341, relating to mail fraud involving a corporation called Discount Panel and Tile Company.” He also affirmed that “[t]he information ... sought ... is (1) relevant to the grand jury’s investigation; (2) properly within the grand jury’s jurisdiction; and (3) not sought primarily for another purpose.”

[92]*92The movants’ principal contention is that the subpoenas are fatally defective in failing to state the nature of the possible crimes being investigated. The Court disagrees. The Court is not aware of, nor have movants pointed to, any statutory or case law requirement that a subpoena state the nature of a grand jury’s investigation. Likewise, there is no requirement that the subpoena assure that the alleged violations under investigation occurred within the district.

In advancing these arguments, movants would essentially have us require that grand jury subpoenas contain the same information that Schofield I required the Government to provide by affidavit if it brings an action to enforce a subpoena. See In re Grand Jury Proceedings (Schofield II), 507 F.2d 963, 964-966 (3d Cir.), cert. denied sub nom. Schofield v. United States, 421 U.S. 1015, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975); In re Grand Jury Proceedings (Schofield I), supra, at 93-94. The Third Circuit has already held, however, that the Government is not required to provide a Schofield affidavit in every case; rather, the Government need only provide such an affidavit when the subpoena is challenged in an enforcement proceeding. United States v. Oliva, 611 F.2d 23, 25 (1979).2 It follows that Schofield does not require that the subpoena itself contain the information provided in a Schofield affidavit.’

In their motion, the movants have also demanded that a Schofield affidavit be produced and have asked the Court to quash the subpoenas if such an affidavit is not produced. As stated above, however, such an affidavit has been produced. Since the affidavit contains no more information regarding the nature of the grand jury’s investigation than the subpoenas themselves (when read in conjunction with the “ADVICE OF RIGHTS”), the Court has examined the affidavit to determine whether, in the face of the movants’ challenges to the similar information contained in the subpoena it is sufficient under Schofield I & II.

In Schofield. I, an appeal in an action brought to enforce a grand jury subpoena, the witness argued that the Government should be required to state the purpose and necessity for requesting the subpoenaed handwriting exemplars, fingerprints and photographs before the witness can be ordered to comply. The Government contended that the court “should not make, or permit the witness to make, any inquiries, or require the Government to make any showing” beyond the facts of the subpoena’s issuance and the witness’ refusal to comply. In re Grand Jury Proceedings (Schofield I), supra, at 88-89. Concerned with the possibility that limiting judicial review so severely would permit the Government to use grand jury subpoenas improperly and realizing that the facts regarding the true purpose of the subpoena are known only by the Government, the Schofield I court required the Government, when seeking enforcement of a grand jury subpoena, to make “some preliminary showing by affidavit that each item is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose.” Id. at 93.

In Schofield II, the court upheld the affidavit produced by the Government in response to Schofield I and noted some of the boundaries of its earlier holding. First, the court stated that whether an affidavit is sufficient is a determination “committed to the sound discretion of the district court.” In re Grand Jury Proceedings (Schofield II), supra, at 965. The court then stated that Schofield I was not intended to be a departure from the long line of cases according broad investigative powers to the grand jury. Id. at 965-966. Furthermore, the court stated that “[o]ur holding in Schofield I did not require a showing of reasonableness, it did not require any determination of probable cause and it clearly did not require a hearing in every case.” Id.

[93]*93In the affidavit approved in Schofield II, the only information about the nature of the possible criminal violations being investigated were the provisions of federal law involved and the indirect suggestion contained in the statement that the fingerprints, photographs and handwriting exemplars sought were to be used “ ‘solely as a standard of comparison to determine whether or not the witness uttered and forged, falsely made, altered or counterfeited [a] check.’” Id. at 967. The affidavit did not explicitly negate the absence of any improper motive behind the subpoena, but the court did not hold the district court’s acceptance of the affidavit with that defect to have been an abuse of discretion.

There is another noteworthy aspect of Schofield I and Schofield II. While the court in Schofield I does state that, “unless extraordinary circumstances appear, the Government’s supporting affidavit should be disclosed to the witness in the enforcement proceeding,” the court also refused to “rule out the possibility that the Government’s affidavit may be presented to the court in camera.” Schofield I, at 93. This clearly suggests that the purpose of the Schofield affidavit is extremely narrow: to assure the district court

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514 F. Supp. 90, 1981 U.S. Dist. LEXIS 12108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grand-jury-proceedings-paed-1981.