UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
March 16, 1978
IN RE GRAND JURY SUBPOENA TO RONALD D. SEIFFERT, VICE PRESIDENT (OR) CUSTODIAN OF THE BANK RECORDS OF UNITED CALIFORNIA BANK
MEMORANDUM-DECISION AND ORDER
This is a petition to quash a grand jury subpoena duces tecum issued by a federal grand jury empanelled within the Northern District of New York and sitting in Utica, New York. The subpoena in question, dated February 2, 1978, was issued to Ronald D. Seiffert, Vice President of the United California Bank.The Bank was required, by the subpoena, to produce all records pertaining to accounts maintained by petitioners William H. Howton, Vining Tower Reynolds, and/or First Financial Group of Texas, a student loan brokering business operated by Howton and Reynolds.
Petitioners challenge the subpoena duces tecum on several grounds. Initially, they assert that as a direct result of the issuance of the subpoena, the United California Bank has terminated all business relations with them. This, they claim, represents not only a deprivation of liberty or property, thereby requiring Due Process under the Fifth Amendment, but also implicates some degree of applicability of the First Amendment's guarantee of freedom of association. The petitioners further allege that the Government is using the process of this Court as a tool to gather evidence for an S.E.C. investigation. The subpoena itself is attacked as being overbroad, not limited in time, having been served on the Bank without notice to the petitioners,
and providing for compliance by delivery to agents of the Federal Bureau of Investigation.
Finally, petitioners assert that the subpoena to the Bank was unreasonable and unnecessary, inasmuch as the records sought could well have been supplied by them instead.
The petitioners call upon the Government to provide an affidavit demonstrating that: (1) the material under subpoena is relevant to an ongoing investigation by a grand jury; (2) the investigation being conducted is within the jurisdiction of the grand jury involved; and (3) there is no other primary purpose for which the material is being sought.
The Court has the power to supervise the use of subpoenaes, by the grand jury, to gain testimony and evidence in the course of investigations. This power is said to derive from the penumbras of the Fourth Amendment's proscription against unreasonable searches and seizures, United States v. Grand Jury Investigation, 417 F. Supp. 389 (E.D. Pa. 1976); 8 Moore's Federal Practice-Criminal Rules P17.11 [2d Ed. Rev. 1977], as well as from the court's inherent ability to supervise the use of process to compel the presence of witnesses, and to oversee the grand jury which it empanels.
The Supreme Court has held that a bank customer has no standing to challenge, based on Fourth Amendment grounds, a grand jury subpoena duces tecum of all bank records pertaining to him. United States v. Miller, 425 U.S. 435, 48 L. Ed. 2d 71, 96 S. Ct. 1619 (1976). Other courts have followed suit, finding that a person lacks standing to challenge a subpoena issued to a third party, but pertaining to records relating to the petitioner either on Fourth or Fifth Amendment grounds. See United States v. Poole, 557 F.2d 531 (5th Cir. 1977); Kelley v. United States, 536 F.2d 897 (9th Cir. 1976); United States v. Bank of California, 424 F. Supp. 220 (N.D. Cal. 1976); also see California Bankers Assn. v. Shultz, 416 U.S. 21, 53, 39 L. Ed. 2d 812, 94 S. Ct. 1494 (1974).
Miller aside, ordinary principles of standing, deriving from the limitations placed upon the jurisdiction of federal courts by Article III of the United States Constitution, dictate that this petition should be denied.In order to bring a suit in federal court, a party must have suffered some injury having a sufficient nexus to the act complained of. Craig v. Boren, 429 U.S. 190, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976), reh.den. 429 U.S. 1124, 97 S. Ct. 1161, 51 L. Ed. 2d 574 (1977); O'Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974); Flast v. Cohen, 392 U.S. 83, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968); Federal Deposit Insurance Company v. Grella, 553 F.2d 258 (2d Cir. 1977). Moreover, the injury must be such as to likely be redressed by a favorable decision by the court. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976).
This Court does not believe that the petitioners have shown a sufficient causal relationship between the subpoena's alleged infirmities and the injury asserted. Petitioners' claims to the contrary notwithstanding, there can be no question that a grand jury may ordinarily acquire, by subpoena, a bank's records pertaining to a customer under investigation. What caused the Bank to terminate its relationship with the petitioners is unknown to this Court.Admittedly, the termination was immediately subsequent to the service of the subpoena, but if this Court quashed the subpoena, the effect upon the Bank's decision to terminate relations with the petitioners is equally unknown. The abuses complained of by petitioners are simply too far removed from the injury asserted to satisfy the Constitutionally-mandated standing requirements.
The petition to quash the subpoena duces tecum issued to the United California Bank is accordingly denied.
It is so ordered.
Howard G. Munson U.S. District Judge