In re Special Grand Jury Proceedings-Subpoena Served on Goodman & Chesnoff

871 F. Supp. 391, 1994 U.S. Dist. LEXIS 17667, 1994 WL 687745
CourtDistrict Court, D. Nevada
DecidedDecember 1, 1994
DocketNo. CV-S-94-312-PMP (LRL)
StatusPublished

This text of 871 F. Supp. 391 (In re Special Grand Jury Proceedings-Subpoena Served on Goodman & Chesnoff) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Special Grand Jury Proceedings-Subpoena Served on Goodman & Chesnoff, 871 F. Supp. 391, 1994 U.S. Dist. LEXIS 17667, 1994 WL 687745 (D. Nev. 1994).

Opinion

ORDER

PRO, District Judge.

I. PROCEDURAL HISTORY

On December 6, 1993, the law firm of Goodman & Chesnoff was served with a subpoena issued by the Special Grand Jury for the District of Nevada for fee information relating to Goodman and Chesnoffs representation of Natale Richichi, Nancy Alba, Gustave Alba, Carmello Richichi, and Carol Resnick from February 1, 1993, to present.1 Thereafter, on March 22, 1994, Osear B. Goodman, Esq., appeared before the Grand Jury as the custodian of records for the firm. Mr. Goodman testified that his law firm had no records called for by the Grand Jury subpoena relating to any of the named individuals except Natale Richichi. Mr. Goodman did agree to provide the Grand Jury with certain records, but refused to produce fee records pertaining to his representation of Natale Richichi or to specify which type of records existed, asserting that compliance ■with the subpoena would violate the rights guaranteed under the Sixth and Eighth Amendments to the Constitution of the United States.

On March 28,1994, the Government filed a Motion for Order to Show Cause (# 1) seeking to compel Goodman’s compliance with the [393]*393subpoena. After the Motion was fully briefed and oral argument was heard, this Court issued an Order (# 11) granting the Government’s Motion for Order to Show Cause, overruling the Sixth and Eighth Amendment claims of privilege asserted by Goodman & Chesnoff, and ordering Goodman & Chesnoff to forthwith comply with the Grand Jury subpoena. See Order (# 11), at 6.

On May 3, 1994, Mr. Goodman reappeared before the Grand Jury as custodian of records for his law firm, and again refused to produce the subpoenaed records. As a result, the Government moved that Goodman be held in contempt under 28 U.S.C. § 1826(a). During a hearing held on May 13, 1994, pursuant to the provisions of § 1826(a), the Court found Mr. Goodman in contempt for failing to comply with the Grand Jury Subpoena Duces Tecum and this Court’s Order of April 26, 1994 (# 11). See Minute Order (# 15). The Court also ordered that Goodman be taken into custody pending compliance with the Grand Jury subpoena. On motion of the Government, however, the Court stayed its Order of incarceration pending Goodman’s expedited appeal to the Ninth Circuit Court of Appeals pursuant to 28 U.S.C. § 1826(b).

In an Order and Opinion filed on August 17, 1994, the Ninth Circuit affirmed this Court’s judgment of contempt against Mr. Goodman for his refusal to comply with the subpoena of the Grand Jury. See In re Grand Jury Proceedings, Goodman v. United States, 33 F.3d 1060 (9th Cir.1994) (per curiam). Mr. Goodman appealed to the United States Supreme Court, but his petition for writ of certiorari was denied on October 3, 1994.

Presently before the Court is the Government’s Motion for Continued Proceedings Re: Order of Contempt (# 32) filed on October 17, 1994. Goodman filed a Response (# 37) on November 7,1994, and the Government filed its Reply (# 38) on November 14, 1994. On November 18,1994, Goodman filed a Response to the Government’s Reply (# 41). The Court heard oral argument on the Government’s Motion on November 23, 1994.

At the hearing conducted November 23, 1994, counsel for Mr. Goodman advised that Mr. Goodman was pow prepared to submit the fee records which are the object of the Grand Jury subpoena to the Court for in camera review together with a Declaration explaining the grounds for his further objection to production of the fee records before the Grand Jury. On November 28,1994, Mr. Goodman submitted the fee records at issue together with a Declaration to the Court for its in camera review (# 48). Additionally, on November 28, 1994, the Government filed under seal with the Court, and served upon Mr. Goodman, an additional Declaration (#47) setting forth what the Government contends is a basis to find that imposition of a coercive monetary sanction or incarceration is likely to induce Mr. Goodman to comply with the Grand Jury subpoena (#47). On November 30, 1994, Goodman filed under seal a Reply to Government’s Response to Motions to Quash Grand Jury Subpoena served on Third Party Filed by Intervenors, (# 51),2 a Declaration of Oscar B. Goodman, and a Reply to Government Declaration (# 50), as well as a further in camera submission (#49).

When this Court held Mr. Goodman in contempt on April 26, 1994, it was with the clear understanding of all involved that Mr. Goodman would have the opportunity to challenge this Court’s Order before the Ninth Circuit Court of Appeals, and if necessary, before the United States Supreme Court. That is precisely why this Court granted the Government’s request to stay the Order of Contempt and incarceration as to Mr. Goodman pending appeal. Those appéals are now exhausted and the law of this case is settled.

On appeal, the Ninth Circuit, as had this Court, rejected Mr. Goodman’s claim that the Grand Jury subpoena violated his rights under the Eighth Amendment, finding Goodman’s claim “speculative and premature.” The Ninth Circuit noted that Mr. Goodman’s [394]*394compliance with the Grand Jury subpoena would not constitute a waiver of his Eighth Amendment claim against the imposition of excessive fines if such fines were imposed in the future as a result of his compliance with the Grand Jury subpoena. 33 F.3d at 1062. The Ninth Circuit also rejected Goodman’s Sixth Amendment right to counsel claim on behalf of his client, Natale Richichi, as “premature and speculative.” Id. at 1063. Finally, the Ninth Circuit rejected Goodman’s claim that compliance with the Grand Jury subpoena would interfere with the attorney-client privilege between Goodman and Natale Richichi. Id.

Mr. Goodman has exhausted his appeal of this Court’s finding of contempt before the Ninth Court of Appeals, and the United States Supreme Court has denied review. Therefore, the law in this case is clear, and absent some alternative ground to justify refusal to do so, Mr. Goodman’s compliance with the Grand Jury subpoena, however distasteful it may be for him, is now mandated.

By its Motion for Continued Proceedings Re: Order of Contempt (# 32), the Government seeks to enforce the Court’s Order of Contempt against Mr. Goodman for his failure to produce the subpoenaed fee records in accordance with the Grand Jury subpoena. In his response, Mr. Goodman contends that the Grand Jury subpoena served on his firm should be quashed because its use constitutes an abuse of the grand jury process. Mr. Goodman further contends the subpoena should be quashed as an appropriate sanction for other instances of alleged Government misconduct. Finally, Mr. Goodman renews his argument that compliance with the Grand Jury’s subpoena violates Natale Richichi’s Sixth Amendment right to counsel.

II. GOODMAN’S GROUNDS FOR QUASHING THE GRAND JURY SUBPOENA

A. Improper Use of the Subpoena as a Discovery Tool

Mr.

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871 F. Supp. 391, 1994 U.S. Dist. LEXIS 17667, 1994 WL 687745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-special-grand-jury-proceedings-subpoena-served-on-goodman-chesnoff-nvd-1994.