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February 20, 1992



The opinion of the court was delivered by: RICHARD J. ARCARA

Presently before the Court is a motion to quash a subpoena duces tecum, pursuant to Fed. R. Crim. P. 17, filed by Kevin M. Dillon, District Attorney for Erie County, New York. The District Attorney's motion seeks an order from this Court quashing a federal grand jury subpoena for state grand jury records. The parties were given an opportunity to brief and argue their respective positions. After reviewing the submissions of the parties and hearing argument from counsel, the Court denies the District Attorney's motion to quash the subpoena.


 A federal grand jury investigation is currently being conducted regarding an incident which occurred on March 8, 1990 in the Main Place Mall, Buffalo, New York, involving the arrest of Mark Aiken and Steven Johnson by officers of the Buffalo Police Department. Specifically, a federal grand jury is investigating allegations that certain officers of the Buffalo Police Department violated federal criminal civil rights laws during and after the arrest of Mr. Aiken and Mr. Johnson. *fn1"

 The District Attorney's Office prosecuted Mr. Aiken and Mr. Johnson on numerous state misdemeanor charges arising from this incident. During the state trial, only two of the six or more officers who were either involved in or witnessed the incident in question actually testified. Consequently, the state trial shed little light on the officers' versions of the allegations that are the focus of the federal criminal civil rights investigation.

 Following the conclusion of the state trial, the District Attorney's Office presented the case to an Erie County grand jury that considered whether the officers' actions during and after the arrest of Mr. Aiken and Mr. Johnson constituted violations of state law. The United States, which was then conducting its own investigation, delayed taking any action in the matter in order to prevent interference with the state investigation. The Erie County grand jury declined to return criminal charges against any of the police officers. As a result, the state investigation into the police officers' conduct concluded in approximately November, 1990.

 When the District Attorney's Office concluded its investigation, the United States conducted an independent review of the matter and concluded that a federal grand jury investigation was warranted. After further investigation, evidence was presented to a federal grand jury in October, 1991.

 The United States claims that the federal grand jury investigation has reached a logjam because of the refusal of the police officers to cooperate with the Federal Bureau of Investigation ("FBI"). Moreover, none of the officers who are most seriously implicated in the investigation submitted any written reports regarding the alleged incident, nor did most of the officers who were present and should have witnessed the incident. Thus, the United States argues that reviewing the transcripts and tapes of the state grand jury testimony of the police officers is the only way that it will be able to learn the officers' versions of what happened.

 The United States initially attempted to obtain the state grand jury material through informal means. When these efforts failed, a grand jury subpoena was issued to the District Attorney's Office on October 25, 1991 for the production of the grand jury transcripts or tapes of all witnesses who testified in this matter before the Erie County grand jury. At the request of the District Attorney's Office, the return date was delayed until January 8, 1992, in an effort to facilitate the resolution of this matter.

 When further efforts to resolve the matter failed, the District Attorney filed the present motion to quash, raising four objections to the production of the state grand jury material. First, the District Attorney argues that compliance would be unreasonable because it would force him to violate state law relating to grand jury secrecy. Second, he argues that the subpoena was served upon the wrong party. Third, the District Attorney contends that compliance would be unreasonable because it would violate policies of comity. Finally, he contends that the subpoenaed grand jury records are privileged.


 It is well-established that a federal grand jury is to be afforded wide latitude in conducting its investigation. See United States v. R. Enters., Inc., 498 U.S. 292, 111 S. Ct. 722, 726, 112 L. Ed. 2d 795 (1991); United States v. Calandra, 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974). "A grand jury investigation 'is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.'" Branzburg v. Hayes, 408 U.S. 665, 701, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972) (quoting United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970)); In re Grand Jury Subpoena for the Prod. of Certain New York State Sales Tax Records, 382 F. Supp. 1205, 1206 (W.D.N.Y. 1974) (quoting Stone, 429 F.2d at 140). In accordance with its broad mandate to investigate possible criminal activity, a federal grand jury has few limitations placed on its subpoena powers. R. Enters., 111 S. Ct. at 726. "A grand jury 'may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.'" Id. (quoting Calandra, 414 U.S. at 343). The only restrictions that have been placed upon the grand jury concern reasonableness and privileges. A grand jury subpoena may not be unreasonable or oppressive, and it may not violate a constitutional, common law or statutory privilege. Branzburg, 408 U.S. at 688; Fed. R. Crim. P. 17(c). Grand jury subpoenas are presumed to be reasonable and the party seeking to quash the subpoena bears the burden of showing that compliance would be unreasonable or oppressive. R. Enters., 111 S. Ct. at 728.

 Regarding the relevancy question, the United States has set forth in some detail, both in its motion papers and in its in camera submission, the reasons underlying the need for the state grand jury records. The United States has been unable to obtain the information contained in the grand jury records from other sources because the police officers have been unwilling to cooperate with the investigation. Accordingly, the Court finds that the statements of the police officers and ...

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