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IN RE GRAND JURY SUBPOENA DUCES TECUM

March 11, 1985

IN RE GRAND JURY SUBPOENA DUCES TECUM DATED JANUARY 2, 1985 (Robert M. Simels, Esq.); DONALD PAYDEN, Intervenor,
v.
UNITED STATES OF AMERICA, Respondent



The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge:

This motion involves a subpoena duces tecum issued by the Grand Jury on January 2, 1985 to Robert M. Simels, Esq. ("Simels"), counsel for defendant Donald Payden ("Payden"), to appear before the Grand Jury and disclose certain information regarding this fee arrangement with Payden. Payden has moved to quash the subpoena on the ground that it violated his sixth and fifth amendment rights. To resolve the issues presented by this motion the court has carefully balanced Payden's sixth and fifth amendment rights and the government's substantial interests in obtaining evidence of criminal conduct. *fn1" The intervenor's motion to quash the subpoena is hereby denied.

BACKGROUND

 On August 2, 1984, Payden was arrested on charges of conspiring to sell heroin. Ten days later, Payden was named in a two court indictment, which charged Payden and another defendant with conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and distribution and possession with intent to distribute heroin in violation of 21 U.S.C. § 841. Upon presentment before Magistrate Leonard Bernikow on August 3, 1984, an appearance was entered for Jay Goldberg, Esq. ("Goldberg") as Payden's counsel. Goldberg continued as Payden's counsel until early September, 1984. *fn2" Following a number of conferences and a hearing, Goldberg chose to withdraw because of an apparent conflict resulting from Goldberg's prior representation of one of Payden's alleged co-conspirators who was a participant in an intercepted telephone conversation that will be played at trial. *fn3" On September 19, 1984, Simels entered an appearance for Payden and has continued as Payden's counsel. On October 10, 1984, the Grand Jury returned a superseding indictment against Payden. In addition to the two counts contained in the initial indictment, the superseding indictment added a third defendant and a count under 21 U.S.C. § 848 which charged that Payden organized a continuing criminal narcotics enterprise ("848 count"). Under the 848 count, the government seeks forfeiture of all profits and proceeds of profits obtained by Payden from the operation of the narcotics enterprise and has particularized two items: case seized from Payden's home and a 25% interest in a company as represented by shares of stock. *fn4"

 On October 17, 1984, subsequent to the return of the first superseding indictment, the government served Simels with a trial subpoena, pursuant to Fed. R. Civ. P. 17(c). *fn5" In substance, the trial subpoena calls for production of documentary evidence relating to defendant's fee arrangement and payments to counsel. The government's stated purpose in seeking fee information pursuant to the trial subpoena "was to obtain evidence of the disposition by Payden in the post-August 2, 1984 period of a substantial sum of money because it would be probative evidence of his receipt of substantial profits from his narcotics trafficking." Government's Affidavit in Response to Motion to Quash at P 31. Although the subpoena was made returnable October 27, 1984, Simels requested and was granted an extension by the government and permitted to withhold the information pending review by the United States Attorney of the decision to seek information regarding Simels' fees. On January 29, 1985, the government withdrew the trial subpoena, pending resolution of this motion.

 On January 2, 1985, the Grand Jury issued a subpoena duces tecum to Simels. The Grand Jury subpoena commands testimony and the production of documents similar to those sought in the previously issued and subsequently withdrawn trial subpoena. *fn6" The Grand Jury subpoena was served on Simels in open court on January 3, 1985. On January 19, 1985, Payden moved to intervene and quash the Grand Jury subpoena and the court heard oral argument on February 5, 1985. The return date of the Grand Jury subpoena has been adjourned on several occasions pending a decision on the motion.

 DISCUSSION

 I. Intervention of Donald Payden.

 Payden's motion to intervene is granted. Payden has presented substantial questions regarding his sixth amendments and fifth amendment rights. The threat to these rights presents a sufficient interest in the subject of the subpoena to entitle him to intervene as of right. See in re Katz, 623 F.2d 122, 125 (2d Cir. 1980) (fifth amendment right of intervenor threatened when intervenor's attorney served with subpoena).

 II. The Motion to Quash the Grand Jury Subpoena.

 Payden seeks to quash the subpoena because it infringes on his right to the effective assistance of counsel provided by the sixth amendment and his fifth amendment right to the free from abuse of grand jury process.

 A. Sixth Amendment Rights.

 The first step in analyzing this motion is to determine the nature of the alleged sixth amendment infringement. The sixth amendment *fn7" protects a number of aspects regarding the effective assistance of counsel, see, e.g., Geders v United States, 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976) (trial court's order preventing communication between counsel and defendant violated sixth amendment); in re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984) (prosecutors' actions which prevented defense counsel from adequately preparing for impending trial violated sixth amendment); United States v. Pineda, 692 F.2d 284, 287 (2d Cir. 1982) (ordinarily government's deliberate use of informer to elicit incriminatory statements from the defendant after the indictment violates the sixth amendment), and not all of them are implicated here. There are three possible areas of infringement in this case: the ...


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