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In re Grand Jury Subpoena Served Upon John Doe

April 1, 1985

IN RE: GRAND JURY SUBPOENA SERVED UPON JOHN DOE, ESQ., PETITIONER, RICHARD ROE, INTERVENOR-APPELLANT
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE



Appeal from an order denying a motion to quash a grand jury subpoena duces tecum served upon an attorney, John Doe, Esquire. His client, Richard Roe, a target of the grand jury's investigation and an individual represented by the attorney for many years, obtained intervenor status and appealed. The Government concedes that if the subpoena is enforced, the attorney will be disqualified. The Government made a showing of relevance. The district court, however, rejected the contention that the Government also should be required to make a preliminary showing of need before compelling the attorney to testify.

Timbers, Cardamone, and Rosenn,*fn* Circuit Judges.

Author: Rosenn

ROSENN, Senior Circuit Judge.

This case presents an important question concerning the right to have counsel of one's choosing. The issue arises in connection with a grand jury subpoena duces tecum served upon an attorney, John Doe, Esquire. Richard Roe (Client), a target of the grand jury's investigation and a longtime client of the attorney, obtained intervenor status and appeals from an order denying a motion to quash the subpoena. Client contends, and the Government concedes, that if the subpoena is enforced, his attorney will be disqualified as counsel if Client is indicted. The Government did make a showing of relevance. The district court, however, rejected the contention that the Government also should be required to make a preliminary showing of need before compelling the attorney to testify. We reverse.

II.

A grand jury in the Eastern District of New York is currently investigating an organized crime family. Of particular relevance is the grand jury's consideration of evidence that may establish that a certain faction of the crime family constitutes an "enterprise," as that term is defined in 18 U.S.C. ยง 1961(4) (1982) (a portion of the RICO statute), and that Client headed that "enterprise." As part of this inquiry, the grand jury is interested in determining whether Client paid for, or otherwise arranged for, the legal representation of members of his "crew" (as the faction is known) who were apprehended during the commission of illegal activity. This would, according to the Government, tend to indicate the existence of an enterprise within the meaning of the RICO statute and to point to Client as the leader. In an effort to establish whether Client actually paid or arranged for the legal representation, the grand jury caused a subpoena duces tecum to be served upon his attorney, a lawyer who has represented Client for approximately the last 18 years. The subpoena called for the attorney's appearance and the production of records of "fees, monies, property or other things of value received, accepted, transferred or held by [him] . . . on his behalf, from, on account of, or on behalf of" twenty-one individuals, several of whom are members of Client's "crew."

On October 5, 1984, the attorney moved for an order pursuant to Fed. R. Crim. P. 17(c) to quash the grand jury subpoena on the ground that the Government had not shown, among other things, either the relevance of the materials to the scope of the inquiry or a particular need for the materials sought. The attorney also argued that the Government was employing the subpoena as the "ultimate weapon" to disqualify him from the case. The Government responded by submitting an affidavit describing the scope of the grand jury inquiry and the relevance of the materials sought.

The Government agreed to forbear from enforcing the subpoena pending appeal, and the district court granted intervenor status to Client for the purpose of bringing this appeal.*fn1

III.

Grand jury subpoenas are issued by the clerk of the court under the court's seal in blank to anyone requesting them without prior court approval or control. Fed. R. Crim. P. 17(a). Although sometimes viewed as instrumentalities of the grand jury, they are "in fact almost universally instrumentalities of the United States Attorney's office or of some other investigative or procesutorial department of the executive branch." In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 90 (3d Cir. 1973). To protect parties against the abuse of this subpoena power, Fed. R. Crim. P. 17(c) empowers the district court, on motion, to quash or modify a subpoena "if compliance would be unreasonable or oppressive." As noted by the First Circuit in In Re Pantojas, 628 F.2d 701, 705 (1st Cir. 1980), and reaffirmed recently in In Re Grand Jury Matters, No. 84-1556, slip op. at 6 (1st Cir. Dec. 19, 1984), "[t]he practical responsibility for controlling grand jury excesses lies with the district court, on which the grand jury must rely for subpoena [enforcement] and contempt procedures." Our standard of review of the district court's decision to deny the motion to quash the subpoena in this case is whether it "acted so arbitrarily here as to exceed its very broad, but not limitless, discretion in this area." In re Grand Jury Matters, supra, slip op. at 7.

Although the grand jury has the right and duty to procure every man's evidence, United States v. Dionisio, 410 U.S. 1, 9-10, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973), the grand jury's powers are not limitless; they are subject to the court's supervisory powers under Fed. R. Crim. P. 17(c), which include the power to quash or modify a subpoena "if compliance would be unreasonable or oppressive." In exercising his supervisory power, "A judge may quash grand jury subpoenas in the proper exercise of his rule 17(c) . . . powers even though the subpoenaed materials are not covered by a statutory, constitutional, or common law privilege. See, e.g., United States v. Winner, 641 F.2d 825 (10th Cir. 1981)." In Re Grand Jury Matters, supra, slip op. at 10.

It may also be helpful to an analysis of the issue before us to state briefly some related or tangential matters that need not be considered. This case does not involve the integrity of the grand jury or the status of sixth amendment rights during the grand jury proceedings.*fn2 It is undisputed that the sixth amendment right to counsel does not attach at the grand jury stage. Nor is the attorney client privilege at stake.*fn3 Our focus is upon a narrow issue in the spectrum of the attorney-client relationship and the administration of justice under an adversary system of law: did the district court act unreasonably in failing to require of the Government, before enforcing a subpoena served upon counsel to testify before a grand jury investigating his client, a preliminary showing of the relevance of and need for the attorney's testimony and records?

A cornerstone of our adversary system of criminal justice is the right of an accused to have counsel represent him. The Colonists considered the right to the assistance of counsel in criminal cases to be fundamental even before the adoption of the federal Constitution and the Bill of Rights. See Powell v. Alabama, 287 U.S. 45, 61-64, 77 L. Ed. 158, 53 S. Ct. 55 (1932). The sixth amendment, which incorporated this view of the role of counsel by providing that in all prosecutions the accused shall enjoy the right to have the assistance of counsel for his defense, gave the principle constitutional dimensions. "[T]he right . . . is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions.'" Id. at 67 (quoting Hebert v. Louisiana, 272 U.S. 312, 316, 71 L. Ed. 270, 47 S. Ct. 103 (1926)).

The Supreme Court in more recent years has observed that the plain wording of the sixth amendment guarantee encompasses counsel's assistance whenever necessary to assure a meaningful defense. United States v. Wade, 388 U.S. 218, 225, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1966). It therefore follows that in assuring a meaningful defense, and in the preparatory stages long before trial,*fn4 an accused has the fundamental right to be represented by counsel "of his own choice." Powell v. Alabama, 287 U.S. at 53; see also United States v. Curcio, 694 F.2d 14, 22-23 (2d Cir. 1982); United States v. Flanagan, 679 F.2d 1072, 1075 (3d Cir. 1982), rev'd on other grounds, 465 U.S. 259, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984).

Of course, this right is not absolute. For example, it has been pointed out that the "protection [provided by the right] goes no further than preventing arbitrary dismissal of the chosen attorney." Id. at 1075.*fn5 Moreover, it is clear that the sixth amendment right to counsel does not attach at the grand jury stage. See Brewer v. Williams, 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977); Kirby v. Illinois, 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972); United States v. Vasquez, 675 F.2d 16 (2d Cir. 1982) (per curiam). In the instant case, however, we are not concerned with sixth amendment rights as they apply, or do not apply, during the grand jury investigation. Rather, the facts of this case are more accurately seen as impinging on Client's right to have counsel of his choosing in the event an indictment is returned against him -- a point at which the sixth amendment unquestionably becomes applicable. That is, this is not a case where a grand jury witness seeks to have the assistance of counsel, or have counsel appointed for him, while appearing before the grand jury. Instead, Client is seeking to preserve his right to have counsel of his own choosing in the event he is indicted. If the right is not protected now, once the right does attach it will already have been rendered meaningless. This circuit has stated that "the right to obtain the assistance of counsel at all crucial stages is essential if both the symbol and reality of a fair trial are to be preserved." United States v. Mohabir, 624 F.2d 1140, 1149 (2d Cir. 1980). Even though a trial has not yet begun, where the attorney's client is the target of a grand jury investigation, a sense of fairness and realism requires that a reasonable effort be made in the interim not to disrupt an ongoing attorney-client relationship.

It is against this background that the Government has chosen to issue a subpoena to a criminal defense lawyer who has represented his client for almost two decades. The issuance of such subpoena is troubling for the Model Code of professional Responsibility states that:If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.

Model Code of Professional Responsibility DR 5-102(B) (1979). Thus, by calling an attorney as a witness against his client, the Government is surely setting the stage for the attorney's ultimate disqualification. The Fourth Circuit has recognized this in a case involving similar circumstances:When a subpoena is issued against an attorney in an ongoing attorney-client relationship, the attorney may well be placed in the position of becoming a witness against his client or risking contempt. In either case, there is a strong possibility that a wedge will be driven between the attorney and the client and the relationship will be destroyed. In re Special Grand Jury No. 81-1 (Leon Harvey), 676 F.2d 1005, 1009 (4th Cir.), vacated and withdrawn when grand jury indicted target and he became fugitive, 697 F.2d 112 (4th Cir. 1982) (en banc) (footnote omitted).*fn6

The Government concedes that enforcement of the subpoena may well lead to the attorney being disqualified from further representing targets affected by his testimony. Nevertheless, it is argued that the public interest in the discovery and prosecution of crime necessarily takes precedence over the right to have counsel of one's choosing, thereby eliminating the need for any preliminary showing of need and relevance before enforcing the subpoena. Of course, the public interest does take precedence in the prosecution, and Client does not deny it. Client, however, claims that before such precedence is exercised, the Government should at least show the relevance of and the need for his attorney's testimony. We agree.

As a general rule, it is true that no preliminary showing of need or relevancy is required before a person may be subpoenaed to appear. See In re Liberatore, 574 F.2d 78, 82-83 (2d Cir. 1978). This rule, however, is not absolute where constitutional rights are implicated. See id.*fn7 In the instant case, the party being subpoenaed is the attorney for a target of the investigation and thus, as we have indicated earlier, constitutional rights are at stake. We must, therefore, carefully balance the implicated constitutional rights of the target of the grand jury investigation to have counsel of his own choosing in the event he is indicted and the significant public interest in the discovery and effective prosecution of crime.

In determining the proper standard to be applied in this extraordinary situation involving a subpoena issued to an attorney to testify before the very grand jury investigating his client, there is little guiding case law. The only case that is really on point is In re Special Grand Jury No. 81-1 (Leon Harvey), supra. In Harvey, the attorneys for a grand jury target were subpoenaed to appear before the grand jury with the records of all money and property received from and disbursed on behalf of their client. The attorneys had represented the target throughout the grand jury proceedings and in prior criminal prosecutions which were also the subject of the grand jury's investigation. In support of a motion to quash the subpoena, the target argued that the documents sought were protected by the attorney-client and work-product privileges, as well as the sixth amendment. In response to this motion, the Government showed only that the investigation related to possible tax violations and that the subpoenaed documents would be useful in proving the contemplated charges. Nevertheless, the district court ultimately denied the motion to quash and the target appealed.

In reversing the district court, the court of appeals first noted, as we have here, that the "subpoena implicate[d] [the target's] constitutional right to counsel of his choice" 676 F.2d at 1009. It then stated that:In balancing the public interest in effective investigation of criminal activity by grand juries against the substantial private interests of preserving a proper on-going attorney-client relationship and protecting confidential communications, it is not an unreasonable burden to require the government to make a preliminary showing by affidavit.

Id. at 1010. The court then went on to determine what must be present in the preliminary showing, concluding that "in this situation, the United States Attorney must include in his preliminary showing a demonstration that the information sought is relevant to and needed for an investigation being conducted by the grand jury." Id. at 1011 (emphasis in original). Focusing on the "need" component, the court stated that the Government must "show by affidavit an important need for the information sought," id. (emphasis added), and further noted that "there are two inquiries the prosecution must address when making a showing of need. First, is the information sought necessary or important to the grand jury investigation? Second, is the subpoenaed attorney the best source for the information?" Id. at 1011 n. 6.

The Government contends that this court has declined to follow the rationale in Harvey. In support of this contention, it cites numerous cases. See, e.g., In re Liberatore, 574 F.2d 78, 82-83 (2d Cir. 1978); In re Horowitz, 482 F.2d 72, 81 (2d Cir.), cert. denied, 414 U.S. 867, 38 L. Ed. 2d 86, 94 S. Ct. 64 (1973); United States v. Doe (Schwartz), 457 F.2d 895, 898 (2d Cir. 1972), cert. denied, 410 U.S. 941, 35 L. Ed. 2d 608, 93 S. Ct. 1376 (1973); Colton v. United States, 306 F.2d 633, 636-37 (2d Cir. 1962), cert. denied, 371 U.S. 951, 9 L. Ed. 2d 499, 83 S. Ct. 505 (1963); In re Heuwetter, 584 F. Supp. 119, 125 n. 5 (S.D.N.Y. 1984). A review of these cases, however, reveals that all but one are readily distinguishable from the case we have under consideration here.

For example, Liberatore, Horowitz, and Schwartz did not involve subpoenas served on lawyers, and Colton concerned the intricacies of the attorney-client privilege, not the right to have counsel of one's choosing. The lone exception is Heuwetter, a case in which the district court dealt directly with Harvey and concluded that no such showing of need and relevancy is required in this circuit, nor should it be. 584 F. Supp. at 125 n. 5. In coming to this conclusion, however, the court relied on three cases -- Horowitz, Colton, and In re Grand Jury Proceeding, 721 F.2d 1221, 1223 (9th Cir. 1983) -- that are completely inapposite. Horowitz dealt with a subpoena issued to a non-lawyer, Colton was decided on the ground that the attorney-client privilege did not apply, and in In re Grand Jury Proceeding, the attorney-client relationship no longer existed at the time of the grand jury investigation. Furthermore, Heuwetter relied in part on the argument that the sixth amendment right to counsel is not applicable at the grand jury stage. See 584 F. Supp. at 125 n. 5. As noted earlier, see supra pp. 2864-65, this is not determinative in the type of case under consideration.

We find the rationale of the court of appeals in Harvey persuasive,*fn8 and, as discussed immediately above, there is no dispositive authority to the contrary in this circuit. Thus, we hold that when a subpoena is issued to an attorney to testify before a grand jury investigating his client whom he has theretofore represented, and where the attorney will be disqualified if he testifies, the Government should make a preliminary showing of relevance and reasonable need.*fn9 Compare In Re Grand Jury Matters, No. 84-1556 (1st Cir. Dec. 19, 1984) (affirming quashing of subpoena in similar case; only significant factual difference is that subpoenaed attorneys were serving as defense counsel in related, pending state criminal proceedings). In reaching this conclusion, we are necessarily faced with the task of balancing two competing interests -- the desire to present in the public interest all relevant information to the grand jury and the interest, under our adversary system of criminal law, in maintaining the integrity of the attorney-client relationship.

In carefully weighing these important interests, two points support additional protection for the attorney-client relationship. First, the unbridled use of the subpoena would potentially allow the Government, in this and future cases, to decide unilaterally that an attorney will not represent his client. Such a power of disqualification can undermine and debilitate our legal system by subjecting the criminal defense bar to the subservience of a governmental agent. The unrestricted exercise of this power without adequate justification does not strike us as necessary or indispensable in an adversary system of criminal justice, particularly when we consider the significance of the attorney-client relationship and the need for an independent bar. Second, as noted earlier, the right to have counsel of one's choosing in the defense of a criminal charge is of constitutional dimensions. Thus, any potential infringement of this right must only be as a last resort. It should be noted, however, that the "protection [provided by the right] goes no further than preventing arbitrary dismissal of the chosen attorney." United States v. Flanagan, 679 F.2d 1072, 1075 (3d Cir. 1982), rev'd on other grounds, 465 U.S. 259, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984). Still, a requirement that the Government make a preliminary showing of need and relevance is consistent with this analysis and is not unduly burdensome. Requiring adequate justification will prevent the arbitrary dismissal of an attorney and still protect the grand jury's access to information if the Government can demonstrate that the attorney's testimony is not only relevant but that there is a need it that cannot reasonably be met in some other fashion. The right to choose one's counsel is thus afforded sufficient protection without being accorded excessive deference.*fn10

III.

The standard enunciated above requires that the Government bear the burden of proving relevance and need before enforcing a grand jury subpoena to compel an attorney to testify before a grand jury investigating his client. The dissent suggests that, in formulating the standard in this manner, we "have ignored our policy of requiring the party challenging the grand jury subpoena to bear the burden of showing that the information sought is either priviliged or irrelevant to any legitimate object of investigation by the grand jury." Dissenting op. at 2897. In support of its position, the dissent relies primarily upon In re Liberatore, 574 F.2d 78, 82-83 (2d Cir. 1978). Liberatore, however, was not a case in which constitutional rights were implicated and, thus, is distinguishable from the case at hand. As the Liberatore court itself recognized, "the government has no burden whatsoever to make a preliminary showing" where "the compelled production of such evidence implicates no constitutional rights." Id. at 82 (emphasis added). This principle is not applicable here for, as we have indicated earlier, constitutional rights are implicated in the instant case.

Liberatore is further distinguishable on the ground that, unlike the case at hand, only non-testimonial evidence was sought in that case. Moreover, Liberatore relies in significant part on the case of In re Horowitz, 482 F.2d 72, 80 (2d Cir.), cert. denied, 414 U.S. 867, 38 L. Ed. 2d 86, 94 S. Ct. 64 (1973). This is instructive inasmuch as the Horowitz court placed on the Government the burden of making a preliminary showing of relevance with respect to certain of the documents sought. See id. at 79-80. Thus, even where no constitutional rights are implicated, this circuit has no per se rule against placing the burden on the party seeking to enforce the subpoena.

Finally, the approach advocated by the dissent involves enormous practical difficulties in the context of a grand jury investigation. In effect, the dissent would require that the party seeking to quash the subpoena prove that the information sought is irrelevant and unnecessary. It is difficult to see how this can be done when, oftentimes, that party will not know the scope or nature of the grand jury investigation. Furthermore, the secrecy requirements of Fed. R. Crim. P. 6(e) impede ...


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