In re Grand Jury Subpoena c/d 91R0052-11

142 F.R.D. 122, 1993 U.S. Dist. LEXIS 6204, 1992 WL 82962
CourtDistrict Court, M.D. North Carolina
DecidedMarch 19, 1992
DocketNos. M-92-19 to M-92-21
StatusPublished

This text of 142 F.R.D. 122 (In re Grand Jury Subpoena c/d 91R0052-11) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina 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 Subpoena c/d 91R0052-11, 142 F.R.D. 122, 1993 U.S. Dist. LEXIS 6204, 1992 WL 82962 (M.D.N.C. 1992).

Opinion

ORDER

SHARP, United States Magistrate Judge.

These matters come before the court on separate motions to quash grand jury subpoenas 91R0052-11, 91R0052-12, and 91R0052-13 (hereafter, subpoenas “11,” “12,” and “13”). Each subpoena is directed to an attorney at law. Subpoena 11 was served upon Randolph James, an attorney who represents Jeffrey Dale Mabe. Subpoena 12 was served upon Daniel Johnson, and subpoena 13 was served upon Gary Williard. Both attorneys Johnson and Wil-liard represent David Milton Crews.1

The subpoena to James calls for, records of any and all monies transferred to attorney James or his firm, by or on behalf of Jeffrey Dale Mabe and/or Terry Gray Smith from 1987 to the present.

The subpoenas served on Johnson and Wil-liard are virtually identical except that they call for records of transfers to those attorneys by or on behalf of David Milton Crews and/or Terry Gray Smith.

The subpoenas commanded production on February 24, 1992. James, Johnson, and Williard filed motions to quash in the period from February 21 to February 24. The government filed a written response with respect to James’s motion. The court, on receiving the flurry of motions, and in view of the need for expedited treatment of grand jury matters, set the matter for oral argument on February 24.

At oral argument, movants and the government appeared and argued the grounds set out in the motions to. quash. The court reserved ruling on the legal questions involved, but called for movants to present, for in camera review, documents responsive to the subpoenas and any affidavits or evidentiary showings necessary to demonstrate the predicate facts of any privilege claimed. Movants have all made the required in camera submissions.

[124]*124In their motions filed February 21-24, movants seek to quash subpoenas 11, 12, and 13 on grounds ■ that (1) under Rule 17(c), Fed.R.Crim.P., they are oppressive because they violate the attorney-client privilege; (2) they are being improperly used by the United States Attorney to gather discovery relevant to other cases; (3) they cause Sixth Amendment violations because they may create actual conflicts between attorney and client; and (4) they violate the attorneys’ Fifth Amendment right to be free from self-incrimination. The court will address these claims in reverse order.

1. Assertions of Fifth Amendment Privilege.

The movants’ first claim is that production of the documents called for in the grand jury subpoenas could serve to incriminate them and therefore the subpoenas should be quashed. Review of the documents and statements submittéd by attorneys James and Johnson shows, however, that only partnership records are responsive to the subpoenas directed to them. Under the well-established “collective entity .rule,” the attorneys have no basis on which to assert Fifth Amendment privilege with respect to production of partnership records. A personal privilege against self-incrimination has no application to partnership records. Beilis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974); Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988).

Attorney Williard is, the submitted documents suggest, a sole practitioner; he may therefore assert Fifth Amendment protection as to his financial records.” The threshold requirement of such an assertion is that the party claiming Fifth Amendment privilege must make a showing that the compelled testimony (here, the act of producing records, see generally United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 [1984]) creates a “real and appreciable,” and not a mere “trifling or imaginary,” hazard of criminal prosecution. Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 705,19 L.Ed.2d 889 (1968). The Fourth Circuit has said that the test is whether compelled information creates a real and appreciable risk that a significant link in the chain of evidence to prove guilt would be established. United States v. Walden, 411 F.2d 1109 (4th Cir.), cert. denied, 396 U.S. 931, 90 S.Ct. 271, 24 L.Ed.2d 230 (1969).

A person claiming Fifth Amendment protection may make a showing that a hazard of prosecution exists either by (1) pointing to compelled testimonial information which is incriminating in nature on its face, or (2) presenting contextual proof that shows how, in connection with other information, the called for testimony could be incriminating. United States v. Sharp, 920 F.2d 1167 (4th Cir.1990).

In the case at bar, attorney Williard’s motion to quash says, in toto on the subject at hand, that the subpoena directed to him “violates Movant’s Fifth Amendment privilege against self-incrimination.” At oral argument, counsel for Williard advised that he stood on his motion and had no oral presentation to make on this issue. The court instructed counsel to submit documents responsive to the subpoena and also to submit any affidavit or declaration necessary to make out predicate facts in support of claims of privilege. Williard has submitted the documents and an “explanation” of the nature of the monies paid to him by Crews and Smith. The explanation and responsive documents show that relatively modest amounts were transferred to attorney Williard in payment for attorney's fees in representations and for reimbursement of minor costs.

On this record, attorney Williard has made no showing of a real and substantial hazard of prosecution. The responsive documents are hardly incriminating on their face. They are the kinds of financial records any attorney would have with regard to routine matters. Williard has given absolutely no contextual proof that would demonstrate how these documents could, in any sense, create a hazard of prosecution against him or a link in a chain of evidence establishing guilt. See In re [125]*125Morganroth, 718 F.2d 161, 169-70 (6th Cir. 1983). The court finds that the “hazard” of prosecution Williard raises is so “trifling and imaginary” and as to be insufficient to sustain a claim of Fifth Amendment privilege.

Accordingly, movants’ requests that subpoenas 11, 12, and 13 be quashed on the basis of assertions of Fifth Amendment privilege are DENIED.

2. Assertions of Sixth Amendment Violation.

Movants assert that the grand jury subpoenas are violative of Sixth Amendment rights held by their clients. They claim that if they reveal fee arrangements with regard to these clients, a conflict between attorney and client will be created, and the attorneys may be called to testify against their clients.

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Related

Marchetti v. United States
390 U.S. 39 (Supreme Court, 1968)
Bellis v. United States
417 U.S. 85 (Supreme Court, 1974)
Upjohn Co. v. United States
449 U.S. 383 (Supreme Court, 1981)
United States v. Doe
465 U.S. 605 (Supreme Court, 1984)
Braswell v. United States
487 U.S. 99 (Supreme Court, 1988)
National Labor Relations Board v. E. Bruce Harvey
349 F.2d 900 (Fourth Circuit, 1965)
In Re Grand Jury Subpoenas. United States
803 F.2d 493 (Ninth Circuit, 1986)
In Re Grand Jury Subpoenas. United States
906 F.2d 1485 (Tenth Circuit, 1990)
In re Grand Jury Proceedings
727 F.2d 1352 (Fourth Circuit, 1984)
United States v. (Under Seal)
748 F.2d 871 (Fourth Circuit, 1984)

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Bluebook (online)
142 F.R.D. 122, 1993 U.S. Dist. LEXIS 6204, 1992 WL 82962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grand-jury-subpoena-cd-91r0052-11-ncmd-1992.