Knut S. Johnson recently opened his own law office in San Diego, CA, after litigating federal criminal cases in private practice and with Federal Defenders of San Diego, Inc. His last Champion article, "Juvenile Delinquents and Federal Law," appeared in the May 1991 issue.
Businesses and individuals are frequently subjected to criminal investigations. A 1993 Coopers & Lybrand survey of more than 200 corporations and their general counsel indicated that 65 percent received grand jury subpoenas, 42 percent were targets of investigation, and 27 percent were notified an employee was targeted.1
Subpoenas are an important part of such investigations because they are easy to obtain and do not usually require the approval of a judge. If they are thwarted, prosecution and disruption of business may be prevented. On the other hand, an inadequate, poorly thought-out or misleading response may invite additional inquiry or prosecution. It may even invite an investigation for obstruction of justice,2 obstruction of federal proceeding,3 obstruction of criminal investigation,4 witness tampering5 or obstruction of federal audit.6 Conduct that impedes a government investigation may also create inferences of guilt admissible at trial.7
Counsel and client must therefore review pertinent facts and applicable law with care. Counsel must also advise the client of the need for careful compliance. This may be difficult for a corporation because a subpoena may be served on a clerk long before it comes to the attention of corporate counsel. Corporations should therefore establish a pre-existing subpoena policy. Also, to retain Fifth Amendment options, an individual should be isolated from contact with law enforcement until counsel determines whether the individual is a "target" or "subject" (discussed below).
This article discusses, in general terms, the law providing a crucial first step toward mounting an effective defense. Although agency and grand jury subpoenas ostensibly serve different purposes (agency supervision and criminal investigation), in reality one will often lead to the other. Hence, this article will highlight both varieties.
Sufficiency, Service And Scope Of Subpoenas
Under Federal Rules of Criminal Procedure, Rule 17, there are certain technical requirements for the contents of a subpoena. The name of the court, the title of the proceeding, the name of the person subpoenaed and the place and time for appearance must all be indicated. In addition, the signature and seal of the clerk of the court must be included.8 Local rules of practice may otherwise influence content.
Rule 17 also sets out requirements for service of a subpoena issued by the clerk of a U.S. district court in a criminal proceeding. Substantially, it is the same as Rule 45(a), except it stipulates a subpoena issued in a criminal case "may be served at any place within the United States," while one issued in a civil case may be served only within the district of issuance or within 100 miles of the "place of trial." All subpoenas must be personally served, and attendance fees and mileage allowed by law must be tendered at service.9 A subpoena directed to a witness in a foreign country may be issued, under certain circumstances, in the manner provided in 28 U.S.C. 1783.10 In general, federal agencies likewise have nationwide service of process.11
The scope of a subpoena is similarly broad. The investigatory power of the grand jury is as pervasive as that of most agencies.12 As discussed more thoroughly below, the Supreme Court has held that "the grand jury [and an agency] 'can investigate merely on suspicion the law is being violated, or even just because it wants to assure that it is not.'"13 This power to investigate based on mere suspicion makes defending against subpoenas extremely difficult.
Motions to Quash and Defenses to Subpoenas
There are many defensive strategies. One may be a motion to quash the subpoena, which may be based on many different grounds.14 They include the attorney-client privilege (discussed below) and work product,15 lack of particularity,16 First Amendment issues17 and technical defects in the service or issuance of the subpoena.18 Other examples are witness competence,19 diversity of the grand jury,20 prejudiced grand jury,21 the subpoena is the fruit of an illegal search,22 abuse of the grand jury function23 and jeopardy to the witness or the witness' family.24
A subpoena may not be issued to collect evidence for a pending case or to help a prosecutor prepare a case for trial.25 Counsel preparing a motion to quash should also explore the possibility of asserting marital26 or other privileges, such as accountant-client privilege,27 the clergyman-penitent privilege28 and the doctor-patient privilege.29
Finally, Fourth and Fifth Amendment challenges to certain subpoenas may exist (discussed below). A motion to quash may be based on the Fourth Amendment; however, Fifth Amendment challenges generally require the assertion of the privilege in response to specific questions. Therefore, the Fifth Amendment is usually not raised in a motion to quash,30 except where it is raised as a defense to the production of documents.31
Local rules of practice may influence the form, service and timing of motions to quash. Motions must be made promptly in situations where delay may cause waiver, such as a claim of attorney-client privilege.32
Fourth Amendment Issues
Fourth Amendment challenges are very difficult. For instance, the Supreme Court has held the Fourth Amendment does not protect copies of checks and other bank records from a subpoena by the government.33 The Supreme Court in United States v. Miller noted that checks are not confidential communications, but negotiable instruments, and all the information on checks is voluntarily conveyed to banks and exposed to employees in the ordinary course of business.34
Nevertheless, the Fourth Amendment may offer some protection for all records, without limitation. For instance, the Supreme Court has held that a petition for writ of mandamus by the Federal Trade Commission for virtually all the records of a corporation violated the Fourth Amendment because no facts were presented showing the documents contained evidence of crime.35 Grand jury subpoenas, however, are not subject to the same relevancy requirements as trial subpoenas. A motion to quash a grand jury subpoena will be granted only if compliance would be "unreasonable or oppressive."36
The Second Circuit recently considered a Fourth Amendment defense to a subpoena.37 In In re McVane, the Federal Deposit Insurance Corporation (FDIC) was investigating the former directors of a failed bank. The FDIC served administrative subpoenas duces tecum on various individuals, including the former directors, their spouses and family members. The former directors filed motions to quash the subpoenas, but the district court denied those motions. It then affirmed in part and remanded in part.
The Second Circuit noted the Constitution rarely limits the power of an agency to issue administrative subpoenas. According to the court, although "cases of actual search and seizure" require probable cause under the Fourth Amendment, cases involving the subpoena of documents are, at best, "constructive searches" that do not require probable cause. Furthermore, the court observed, the Fifth Amendment offers no protection to a corporation or its officers against a subpoena for corporate records.38 The Fourth Amendment offers protection from a subpoena
only by way of indefiniteness or breadth in the things required to be "particularly described," if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is the requirement that the disclosure sought shall not be unreasonable.39
In addition, the court pointed out that in United States v. Morton Salt Co.,40 the United States Supreme Court "extended and refined" its earlier Oklahoma Press holding. According to the Second Circuit, under that precedent, the administrative agency has the power "of inquisition" similar to that of a grand jury. That power, the court held, may be exercised "merely on suspicion that the law is being violated, or just because [the agency] wants assurance that it is not."41 Such broad powers make virtually any seizure pursuant to a subpoena reasonable under the Fourth Amendment.
Due to the FDIC's power of inquisition, the Second Circuit held that subpoenas for personal and corporate records of directors were reasonable. Under Morton Salt, the investigation must be within the authority of the agency, the demand can not be indefinite, and the information sought must be reasonably relevant. The Second Circuit suggested that the information sought by the subpoenas would: (1) help assess the liability of the directors; (2) help determine whether pursuit of claims against the directors would be cost-effective; (3) help reveal whether the directors transferred assets to family members; and (4) help decide whether to seek an attachment of assets. The district court's determination that the subpoena did not violate the Fourth Amendment was therefore not clearly erroneous because the personal and corporate records of directors were relevant to the investigation.42
The Second Circuit also considered an FDIC subpoena for personal records of people related to officers and directors of the failed bank. In contrast to the limited rights of a corporation and its directors, persons have "rights to privacy" derived from the First, Fourth, Fifth and Fourteenth Amendments. Among those rights is "the individual interest in avoiding disclosure of personal matters."43 The Second Circuit in In re McVane observed there is a constitutionally protected privacy interest with respect to "bank statements, financial statements and other documents prepared or generated in connection with transactions with others."44 It also noted a customer has privacy rights when it comes to financial records.
However, there are no such rights when a bank is asked to reveal these records, even if they reflect a customer's finances. The Second Circuit reasoned that an agency subpoena for personal records of individuals related to officers and directors of the failed bank must face more exacting scrutiny than subpoenas seeking records solely from corporate participants.45 The Second Circuit therefore held that a court must quash a subpoena directed to family members unless the agency makes "some showing of need for the materials sought beyond its mere relevance to a proper investigation."46
The Second Circuit then affirmed the District Court's finding that the FDIC did not make the necessary showing to subpoena personal records. Indeed, the FDIC did not show that the directors had transferred assets to spouses or family members. Furthermore, the FDIC did not show why the subpoenas could not be more narrowly drawn. According to the Second Circuit, the reference in the subpoenas to "any member of your immediate family" was unnecessarily "sweeping and vague; if any documents are required from family members, such persons must be specified with greater precision." The circuit court therefore reversed the denial of the motion to quash.47
On the other hand, the Second Circuit in In re McVane also argued that the FDIC may properly subpoena the personal records of a director to find whether the director has enough net worth to justify a lawsuit. Although the agency "may not browse freely through their personal pockets solely to ascertain the depth of the pockets of the potential target," the court observed, the FDIC had properly articulated "specific grounds for its suspicion of liability."48 The FDIC articulated those grounds in a declaration alleging that 1) the bank lost more than $9 million on insider loans to certain directors and their business associates, 2) the directors originated and approved the loans after regulators told them that the bank was unsound and 3) another director had transferred real estate worth millions of dollars to family members after the bank failed. The Second Circuit held that these allegations sufficiently supported the FDIC's request for information about the directors' net worth.49
The D.C. Circuit has also considered an agency subpoena for personal records.50 At issue in that case, In re Sealed Case (Administrative Subpoena), was a challenge to an Office of Thrift Supervisor (OTS) subpoena for the personal financial records of the former directors of a federal savings association. Upon appeal, the D.C. Circuit prohibited enforcement of a subpoena to uncover "other wrongdoing, as yet unknown," holding such broad language violated the Morton Salt.51 Counsel should therefore carefully evaluate the stated purpose of the subpoena to see if it is so broad that it presents a viable defense.
As discussed above, a person may base a motion to quash a subpoena on various privileges. The Ninth Circuit Court of Appeals recently held the attorney-client privilege precludes the issuance of a subpoena to corporate counsel for communications about a crime after its completion. In In re Grand Jury Subpoena 92-1 (SJ), a corporation (the Corporation) manufactured and exported global positioning systems (GPS) units, which may be used for civilian or military purposes.52 In 1988 the Corporation asked its corporate counsel for help in getting an export license to ship the units to Iran and the United Arab Emirates. On March 28, 1990, the Corporation was given a license to export the units to Iran.53
After the Corporation was given the export license, the grand jury began investigating whether the Corporation shipped GPS units to Iran before receiving its license.54 As part of that investigation, the grand jury served a subpoena duces tecum on the Corporation's in-house counsel requesting all documents created between Jan. 1,1988 and July 15, 1991 related to the allegedly illegal exports. The Corporation invoked the attorney-client privilege in a motion to quash, which the district court denied.55
In addressing denial, the Ninth Circuit noted the attorney-client privilege does not extend to "conversations which solicit or offer advice for the commission of a crime or fraud."56 Citing In re Grand Jury Investigation,57 the Ninth Circuit also noted the district court may, under United States v. Zolin,58 conduct an in camera review of subpoenaed documents to determine whether the crime-fraud exception applies.59
The Supreme Court in Zolin created a two-step analysis to determine whether subpoenaed documents must be produced in camera. First, the government must make a "showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish that the crime-fraud exception applies."60 Second, once that "threshold" showing is made by the government, the district court then "exercises its discretion" and decides whether to order the in camera review. That discretion is based on all the facts and circumstances of the case, including the volume of material, the importance of the alleged privileged materials and the likelihood that the evidence will establish the crime-fraud exception under Zolin.61
The Ninth Circuit in In re Grand Jury Subpoena 92-1 (SJ) also considered whether the court must review evidence presented by the subpoenaed person before determining if there has been a prima facie showing of the crime-fraud exception. It noted that "the first step of the analysis should focus only on the evidence presented by the party seeking in camera review."62 It also held that the district court may, but is not required to, consider evidence provided by the subpoenaed person before exercising its discretion under Zolin.63
Finally, the Ninth Circuit considered whether certain subpoenaed documents were relevant to the alleged crime-fraud exception. The subpoena requested the production of documents created before and after March 28, 1990, the date the Corporation received its license to export to Iran. The court held that only documents relevant to the alleged crime or fraud could be produced for in camera review unless there is proof of a continuing cover-up. Without any cover-up, documents created after the date of legal export were irrelevant to the alleged crime, and thus the crime-fraud exception could not defeat a claim of privilege to those documents.64 If the government claims the crime-fraud exception, counsel should check the beginning and end dates of the alleged crime.
Clearly, the attorney-client privilege is complex and fraught with possible peril. Counsel should carefully analyze and research attorney-client privilege problems to prevent inadvertent waiver.
Appeal From Denial of a Motion to Quash
Successful appeal of the denial of a motion to quash may depend, initially, upon who was subpoenaed. For instance, in In re Grand Jury Subpoena Issued to Charles D. Bailin, the Ninth Circuit held that the target (the Movant) could not appeal the denial.65 In Bailin, the subpoena was served on an accountant hired by the Movant's attorney to assist the Movant's defense. The Ninth Circuit concluded that the Movant could appeal only after a contempt citation was issued to the accountant for failing to comply with the subpoena.
In Bailin, the Ninth Circuit noted generally that the denial "is a non appealable interlocutory order." Such an order can usually be appealed only by refusing to comply with the subpoena, receiving a contempt citation and then appealing the contempt citation.66 The "Perlman exception," however, allows an appeal if the subpoena is directed at a third person who "cannot be expected to risk a contempt citation" to preserve the right to appeal.67 If the exception does not apply, there can be no appeal until a court holds the subpoenaed person in contempt for refusing to comply.68
The Perlman exception does not apply to subpoenas served on attorneys who are currently representing the party moving to quash. Therefore, the district court must first hold such attorneys in contempt for refusing to comply with a subpoena before the denial of the motion may be appealed. On the other hand, the denial of a motion to quash a subpoena served on a former attorney is immediately appealable. The Ninth Circuit in Bailin distinguished In re Grand Jury Subpoena 92-1 (SJ),69 which held a subpoena directed at an attorney is directly appealable. In re Grand Jury Subpoena 92-1 (SJ) is distinguishable, the court argued, because in that case, the subpoenaed attorney was no longer representing the target who moved to quash.
There are two reasons for the Perlman exception. First, the exception protects persons who cannot control the actions of the subpoenaed third parties. Second, third parties who are participants in the confidential relationship upon which the claim of privilege is made should not be able to appeal without first risking contempt.70 Using that rationale, the Ninth Circuit in Bailin held that the Perlman exception does not apply to an accountant who represents the Movant at the time. The accountant in Bailin continued to represent the Movant throughout the grand jury proceedings and was therefore subject to the control of the Movant. More importantly, however, the Movant was a party to the relationship that formed the basis of the privilege claim. In that circumstance, the court held, the accountant can be expected to risk contempt to protect the privileged communication. Therefore, the Movant could not appeal the district court's refusal to quash the subpoena served on the accountant until a contempt citation was issued.71
Nonetheless, under certain circumstances a third party may intervene and quash a subpoena served on another party. For instance, in Gravel v. United States, the Supreme Court recognized the standing of a United States Senator and quashed a subpoena directed against the Senator's legislative assistant.72 Other courts have similarly intervened in many other cases, but each situation must be addressed on the facts.73
Fifth Amendment and Immunity
The Fifth Amendment to the Constitution states that, "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." A person may be compelled to testify under 18 U.S.C. 6002 if certain procedures are followed,
but no testimony or other information compelled under the order . . . may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
In other words, the Fifth Amendment and 6002 prohibit persons from being forced to "testify" unless that testimony will not be used "against" the witness in a criminal case. Hence, a witness may be forced to testify if immunized under 6002 or some similar statute. According to the Supreme Court, the Fifth Amendment generally protects testimony immunized by statute74 and testimony "compelled" by the state.75
Corporations and the Fifth Amendment
The Supreme Court applies the Fifth Amendment differently to corporations and individuals. For instance, corporations may not assert the Fifth Amendment right against self-incrimination through their officers, directors or counsel.76 In the case creating that rule, Braswell v. United States, a federal grand jury issued a subpoena to the president of a corporation requiring the production of certain corporate books and records. It did not require any testimony and stated that the documents could be delivered to the agents serving the subpoena. The petitioner moved to quash the subpoena, arguing that the act of producing the records incriminated him in violation of his Fifth Amendment right.77 The Supreme Court disagreed, noting that "[t]here is no question but that the contents of the subpoena business records are not privileged," and that "it is well-established that such artificial entities [as corporations] are not protected by the Fifth Amendment."78 Corporations, thus, have no Fifth Amendment protection.
Immunity For Testimony
Subpoenaed persons are sometimes granted immunity before testifying. When representing a person subpoenaed to testify in front of the grand jury, counsel must be extremely careful to examine immunity issues. Whether a client wants or needs immunity may depend on his or her status. The client may be a target, subject or simply a witness.
Targets are individuals who have a substantial amount of evidence linking them to the commission of a crime. They need not be given warnings under Miranda v. Arizona if subpoenaed to testify before a grand jury.79 No Supreme Court cases mandate such warnings, and at least one circuit does not constitutionally require the warnings.80 Nonetheless, the United States Attorney's Manual sets forth guidelines restricting the use of a subpoena to compel a target to testify.
A subject is a person whose conduct falls within the scope of the grand jury investigation.81 Like a target, a subpoenaed subject has no right to Miranda v. Arizona warnings.
In other words, a subpoenaed person need not be told he or she is a "target" or "subject" before testifying. Counsel must therefore clarify the status of a witness before the witness testifies and obtain immunity, if possible. If immunity is not possible, counsel should try to prevent the person from testifying. For instance, a person may be subpoenaed only as a "custodian of records." Counsel should try to avoid subjecting the custodian to questioning behind the closed doors of the grand jury. To block such secret questioning, counsel may negotiate for a declaration to be provided in place of testimony.
Before negotiating, counsel should be aware of the procedures under which 6002 may grant immunity. The United States (with the approval of the Attorney General or designee) asks the District Court for an order of immunity when: (1) the testimony or information to be provided "may be necessary to the public interest"; and (2) a person "has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination."82 The procedure is slightly different when a motion is brought to issue an immunity order for a person subpoenaed to testify before Congress.83
In practice, therefore, counsel should negotiate immunity under 6002 prior to any testimony. If the prosecutor or agency attorney refuses, the witness may simply assert the Fifth Amendment. The prosecutor or agency attorney may then choose not to use the witness or ask for an order granting the witness immunity under 6002, after which the witness must testify or be held in contempt.
If a witness receives immunity, counsel must then advise the witness of what the government may do with the immunized testimony. Once testimony is immunized under 6002 and Kastigar v. United States, the government may not use it in "any respect."84 Counsel, however, must understand the meanings of immunity and use.
Federal practitioners frequently speak of formal and informal immunity. Informal immunity, also referred to occasionally as letter immunity, refers to an agreement or a letter from the U.S. Attorney providing immunity. Formal immunity refers to a court order under 18 U.S.C. 6003, 6004 or 6005 granting immunity. Many states have their own formal immunity procedure. The difference between the formal and informal immunity can be significant.
Recently, a grand jury witness in Seattle learned the difference. As reported in the BNA Criminal Practice Manual, that witness received letter immunity.85 The witness was then debriefed by Assistant U.S. Attorneys and later testified in front of the grand jury. Afterwards, the witness received a letter from an Assistant U.S. Attorney stating he was a grand jury target.
After the witness learned he was a target, the same grand jury before which he testified indicted him. The witness then protested the indictment. Citing the United States Attorney's Manual, the witness argued that an immunized witness may not be indicted until the Assistant U.S. Attorney has asked for approval from the Department of Justice.86 The prosecution successfully argued that such approval is only required if the immunity was formal. Without such approval, the witness faces federal charges without the added protection of review by the Department of Justice. Unfortunately, no circuit has yet forced a federal prosecutor to follow the United States Attorney's Manual.
More importantly, informal or letter immunity does not provide any constitutional protection. In United States v. Camp, the Ninth Circuit held that the Fifth Amendment does not protect information given pursuant to an immunity agreement when the defendant was not compelled to testify.87 In Camp, the defendant received "letter" immunity in a state prosecution but never invoked the Fifth Amendment prior to immunization. According to the Ninth Circuit, the defendant "had the option to remain silent" and was never compelled to testify. Thus, the court held, statements made pursuant to that letter immunity were not protected by the Fifth Amendment and could be used against the defendant.88
As Camp demonstrates, counsel representing a witness receiving immunity must exercise caution. Counsel should draft an immunity agreement binding as many prosecutorial agencies as possible. That agreement should protect against any use of testimony, whether given in front of the grand jury or prior to a grand jury appearance at proffer or debriefing. Finally, counsel should always ask for formal immunity.
Formal immunity may also apply to agency subpoenas. The Ninth Circuit recently discussed procedures affecting formal immunity when the California commissioner of corporations issues a subpoena.89 In United States v. Anderson, the commissioner attempted to enjoin violations of California security law by suing several corporate entities and individuals. The commissioner then subpoenaed documents and testimony from Anderson, who asserted the Fifth Amendment. In response, the commissioner obtained an order to show cause why Anderson should not be held in contempt for failing to turn over records and testify. Anderson, through counsel, then agreed to "waive his [F]ifth [A]mendment privilege" and testify and produce documents.90
Anderson was later indicted by a federal grand jury. He then argued to the district court that the Fifth Amendment protected the information he gave to the commissioner. The district court rejected that argument, as did the Ninth Circuit. The Ninth Circuit pointed out that California immunizes certain statements given to the commissioner.91 Such immunity, however, requires a hearing to determine the validity of the privilege claim. Anderson waived immunity when he waived that hearing.92
Anderson also argued that the threat of contempt compelled his testimony, thus protecting it under the Fifth Amendment. The Ninth Circuit also rejected that contention. The court noted that the waiver compelled by threat of contempt did not coerce Anderson's statement. Anderson did not ask a court to consider the validity of the privilege claim and, therefore, failed to follow the statutory scheme.93 Anderson teaches that counsel must aggressively assert the Fifth Amendment and refuse to allow a client to testify unless a court orders the testimony. Without such an order, the witness may waive the Fifth Amendment even when a statute specifically immunizes testimony.
Compelled testimony, subject to formal immunity, may also be produced when government employers question employees or contractors. In Lefkowitz v. Turley,94 the Supreme Court held that under the Fifth Amendment,
answers elicited upon the threat of loss of employment are compelled and inadmissible in evidence. Hence, if answers are to be required in such circumstances states must offer to the witness whatever immunity is required to supplement the privilege and may not insist [upon waiver].95
Counsel should therefore carefully advise government employees who are ordered to answer their employers' questions.
Recent case law has clarified how the Fifth Amendment applies to statements compelled by government employers. In one such case, In re Grand Jury Subpoena (Huntington Beach Police Dept.), police officers made statements because investigators threatened to fire them unless they spoke to Internal Affairs.96 The officers later moved to quash a grand jury subpoena for reports of those statements. The Ninth Circuit held that the Fifth Amendment does not prevent production of already compelled statements. Instead, the court concluded, because the Fifth Amendment only protects subsequent "use" of compelled statements, the subpoenaed reports were not privileged from production.
The court then approved a procedure to prevent any improper "use" of the compelled statements. First, before the grand jury hears the statements, Department of Justice personnel not involved in the investigation or prosecution may review the statements to redact privileged testimony. Next, a court must hold a Kastigar hearing,97 where the government must prove an "independent source" for all the evidence.98 Thus, a previously compelled (and immune) statement may be subpoenaed if certain procedures are used to protect privileged portions of it and if a court holds a hearing to ensure an independent source for the evidence.
Simply receiving immunity is, of course, no guarantee a witness will not be prosecuted. In Kastigar, the Supreme Court affirmed the constitutionality of 18 U.S.C. 6002. Kastigar held a previously immunized witness may be prosecuted for crimes revealed under the order of immunity. The Supreme Court, however, emphasized that 6002 "provides a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom." Id. at 460.
Nonetheless, courts have liberally construed the term "use." For instance, in United States v. Montoya, the Ninth Circuit allowed prosecutors to "use" immunized statements to decide whether to prosecute an immunized witness.99 In that case, the government believed an immunized grand jury witness lied and therefore prosecuted him for the acts he testified about under immunity. Yet, the government admitted it did not have sufficient evidence to prove perjury.100 Counsel should therefore be very cautious about how immunized testimony may later be "used" to hurt an immunized witness.
"Doe" Immunity For Production of Documents
Although the contents of documents have no Fifth Amendment privilege, the act of producing subpoenaed documents may be privileged.101 In United States v. Doe, the Supreme Court observed that the act of producing documents may elicit self-incriminating testimony.102 Such testimony may include acknowledging that records exist, admitting that records are in the possession of the witness or attesting to the authenticity of certain documents.
The Seventh Circuit has also considered Doe immunity, ultimately affirming a district court's order granting it to a grand jury witness.103 In matter of Grand Jury Proceeding (Barton), the testimony of two witnesses before a grand jury cast doubt on the authenticity of certain documents which a witness previously produced. The grand jury then subpoenaed the attorney for the witness to testify regarding production.104 Upon appeal, the Seventh Circuit held that compelling the attorney to testify did not violate the Doe immunity of the witness. The court also pointed out that the argument by the witness was premature in a motion to quash -- "He may assert a violation of Doe immunity if he is charged with an offense related to the grant of immunity."105
This issue, like others associated with immunity, is complex and fraught with peril. All situations in which Doe immunity may be a factor should be vigorously researched and analyzed. In all appropriate instances counsel should ask for formal Doe immunity or move to quash based on the Fifth Amendment.
After analyzing the legal issues, counsel should negotiate some or all of the following issues with the prosecutor or agency attorney: an extension of time to respond to the subpoena; a narrowing of the scope of the subpoena; substitution of declarations in place of testimony; notification to all "targets" and "subjects;" access to documents necessary for continued business operations; and any other sensitive areas.
In the case of a subpoena for documents, the most important issue to negotiate is usually a narrowing of the scope of the subpoena. Subpoenas are usually extremely broad and can be difficult to comply with in a reasonable amount of time. To narrow the scope of the subpoena, counsel must ascertain the scope of the agency or grand jury investigation. Although the prosecutor or agency attorney may be reluctant to discuss the investigation, counsel should stress the disruption to business activity, the expense to the company and, most importantly, the fact that a more narrowly drawn subpoena will make reviewing documents easier for the prosecution.
Typical ways of narrowing scope include shortening the time frame for requested documents, restricting the subject matter for requested documents and limiting the number of persons who must respond to the subpoena. Additionally, counsel may ask for the identity of particular types of documents or particular authors of documents. The process of negotiating a more narrow subpoena usually requires educating the prosecutor or agency attorney about the subpoenaed entity.
Narrower subpoenas serve numerous purposes. First, they help identify the subject matter of the investigation. Second, they help in defense efforts. Finally, they may save resources by making compliance less onerous.
If an individual is subpoenaed to testify but not to produce documents, counsel should attempt to negotiate the subject matter of the testimony. Although prosecutors and agency attorneys are typically unwilling to identify exact questions, counsel should explain that a prepared witness can refresh his or her recollection and testify more effectively. In addition, a witness who knows the subject matter beforehand may be able to bring documents that will explain the testimony.
Most importantly for individuals, counsel will have to evaluate the Fifth Amendment. If a prosecutor or agency attorney is unwilling to discuss the subject matter, counsel may assert the Fifth Amendment until the subject matter is revealed. Counsel should also aggressively negotiate formal immunity in all appropriate cases.
Once counsel has resolved all objections and litigated all possible motions to quash, the subpoenaed person must comply. Counsel should then make certain the custodian of records and in-house counsel for companies responding to a subpoena understand the subpoena and their obligations.
Finally, counsel should ensure privileged and non-responsive documents are not produced in response to the subpoena. A log should be kept of all responsive documents noting, at a minimum, the subpoena paragraph number, a description of the documents, the originators of the documents and the document numbers. Finally, when submitting documents to the government, a counsel should prepare a transmittal letter noting agreements regarding the scope of the subpoena, clarifications and all other matters relevant to the produced materials. Counsel should be certain to keep a precise index of all items produced and always have the prosecutor or agency attorney sign a receipt for documents.
1. The Coopers & Lybrand study may be found at Gill, Donna, 1993 General Counsel Survey: Organizational Sentencing Guidelines, Chic. Law., November 1993.
2. 18 U.S.C. 1503.
3. 18 U.S.C. 1505.
4. 18 U.S.C. 1510.
5. 18 U.S.C. 1512.
6. 18 U.S.C. 1516.
7. See, e.g., Devitt, Blackmar, Wolff and O'Malley, Federal Jury Practice and Instructions, 1406-1408 (inference of guilt permissible if defendant gives false exculpatory statement, suppressed or fabricated evidence, or concealed himself).
8. See, Rule 17(a).
9. Rule 17(d).
10. Those requirements include the subpoenaed person (who may be required to produce documents) must be a "national or resident of the United States."
11. See, e.g., 12 U.S.C. 1818(n) and 1821(d)(2)(I)(i) (The Federal Deposit Insurance Corporation); 15 U.S.C. 78u(b) (the Securities & Exchange Commission).
12. United States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950); See, generally, Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise, 4.1, 4.2, 4.5 (3d. ed. 1994).
13. United States v. R. Enterprises, 498 U.S. 292, 297 (1991) (quoting Morton Salt, 338 U.S. at 642-643.
14. See, National Lawyers Guild, Representation of Witnesses Before Grand Juries 2.9, 2.10 (3d.ed 1996).
15. Upjohn v. United States, 449 U.S. 383, 396 and 401 (1981).
16. In re Grand Jury Subpoena: Subpoena Duces Tecum, 829 F.2d 1291, 1301 (4th Cir. 1987) ("A subpoena duces tecum should be particular in a way that leaves as little discretion as possible to the recipient.").
17. Id. at 1298-99.
18. Rule 17(d); United States v. Davenport, 312 F.2d 303, 306 (7th Cir. 1963) (Service of a subpoena must be personal.).
19. See, e.g., In re Loughran, 276 F.Supp. 393, 429 (C.D. Cal. 1967).
20. See, Taylor v. United States, 419 U.S. 522, 530 (1975); 28 U.S.C. 1861-78.
21. Costello v. United States, 350 U.S. 359, 362 (1956).
22. Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).
23. See, e.g., United States v. Jenkins, 904 F.2d 549 (10th Cir. 1990); United States v. (Under Seal), 714 F.2d 347, 349 (4th Cir. 1983) (prosecution may not use grand jury to support case already indicted). See also, United States v. Proctor & Gamble Co., 356 U.S. 677, 683 (1958) (dicta); In re April 1956 Term Grand Jury, 239 F.2d 263, 272-73 (7th Cir. 1956) (prosecution may not use grand jury to elicit information for civil case).
24. See, e.g., Matter of Grand Jury Proceeding, 903 F.2d 1167, 1169-71 (7th Cir. 1990).
25. United States v. Doss, 563 F.2d 265, 276 (6th Cir. 1977) (en banc).
26 In re Grand Jury Investigation of Hugle, 754 F.2d 863, 865-66 (9th Cir. 1985).
27. Although there is no federal accountant-client privilege (see, Couch v. United States, 465 U.S. 322, 335 (1972)), the work of an accountant may fall within the attorney-client privilege if the accountant is retained by an attorney. See, United States v. Cote, 456 F.2d 142, 144 (8th Cir. 1972).
28. In re Verplank, 329 F.Supp. 433 (C.D. Cal. 1978).
29. Although there is authority declining to create a federal physician-patient privilege in criminal cases, United States v. Bercier, 848 F.2d 917, 920 (8th Cir. 1988), there is authority for a psychotherapist-patient privilege, In re Zuniga, 714 F.2d 632, 639 (6th Cir.) cert. denied, 464 U.S. 983 (1983); but, see contra, In re Grand Jury Proceeding, 867 F.2d 562, 565 (9th Cir.), cert. denied, 493 U.S. 906 (1989).
30. See, e.g., United States v. Winters, 348 F.2d 204 (2d Cir. 1965).
31. See, e.g., United States v. Doe, 104 S.Ct. 1237 (1984).
32. For example, if privileged documents are inadvertently provided to the government. See, e.g., In re Sealed Case, 877 F.2d 976, 980-81 (D.C. Cir. 1989).
33. United States v. Miller, 425 U.S. 435 (1976).
34. Id. at 444-45.
35. Federal Trade Commission v. American Tobacco Company, 264 U.S. 298, 305-306 (1924).
36. United States v. R. Enterprises, Inc., 498 U.S. 292 (1991).
37. In re McVane, 44 F.3d 1127 (2nd Cir. 1995).
38. Id. at 1134-35 (citing Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 202-208 (1946)).
39. In re McVane at 1135 (quoting Oklahoma Press, 327 U.S. at 208).
40. United States v. Morton Salt Co., 338 U.S. 632 (1950).
41. In re McVane at 1135 (citing Morton Salt, 338 U.S. at 642-643).
42. Id. at 1136-37.
43. In re McVane at 1137 (quoting Nixon v. Administrator of General Services, 433 U.S. 425, 457 (1977); Whalen v. Roe, 429 U.S. 589, 599 (1977)).
44. Id. at 1138, n. 4.
45. Id. at 1138.
46. Id. at 1138 (quoting Federal Election Comm'n v. Larouche Campaign, 817 F.2d 233, 234 (2nd Cir. 1987) (per curiam)); Accord, RTC v. Walde, 18 F.3d 943 (D.C. Cir. 1994).
47. Id. at 1139.
48. Id. at 1140.
49. Id. at 1140.
50. In re Sealed Case (Administrative Subpoena), 42 F.3d 1412 (D.C. Cir. 1994).
51. Id. at 1418.
52. In re Grand Jury Subpoena 92-1 (SJ), 31 F.3d 826 (9th Cir. 1994).
53. Id. at 828.
54. Id. at 828.
56. Id. at 829 (citation omitted).
57. In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992).
58. United States v. Zolin, 491 U.S. 554 (1989).
59. In re Grand Jury Subpoena 92-1 (SJ), 31 F.3d at 829.
60. Id. (quoting Zolin at 572).
62. Id. (citation omitted) (emphasis added).
63. Id. at 830.
64. Id. at 831.
65. In re Grand Jury Subpoena Issued to Charles D. Bailin, 51 F.3d 203 (9th Cir. 1995).
66. Id. at 205 (citing United States v. Ryan, 402 U.S. 530, 532-33 (1971)).
67. Id. (quoting In re Grand Jury Subpoena Served Upon Niren, 784 F.2d 939, 941 (9th Cir. 1986), citing Perlman v. United States, 247 U.S. 7, 15 (1918)).
68. Id. at 206.
69. In re Grand Jury Subpoena 92-1 (SJ), 31 F.3d 826 (9th Cir. 1994).
70. Bailin, at 255 (citing Niren, 941 F.2d at 941).
71. Id. at 256.
72. Gravel v. United States, 408 U.S. 606 (1972).
73. For an excellent discussion of intervention, see National Lawyers Guild, Representation of Witnesses Before Grand Juries 3.4 (3d.ed 1996).
74. See, e.g., Kastigar v. United States, 406 U.S. 441 (1972) and Murphy v. Waterfront Commission, 378 U.S. 52 (1984).
75. See, e.g., Garner v. United States, 424 U.S. 648 (1976); Lefkowitz v. Cunningham, 431 U.S. 801 (1977); United States v. Koon, 34 F.3d 1416, 1431 (9th Cir. 1994) (police officer who invoked Fifth Amendment but who later made statements under threat of being fired was "compelled" to make statements in violation of Fifth Amendment), reversed in part on other grounds, 116 S.Ct. 2035 (1996).
76. Braswell v. United States, 487 U.S. 99 (1988).
77. Id. at 101.
78. Id. at 102 (citation omitted).
79. United States v. Long, 706 F.2d 1044, 1051 (9th Cir. 1983).
80. Long, supra, 706 F.2d at 1051.
81. United States Attorneys' Manual, 9-11.150 (1988).
82. 18 U.S.C. 6003.
83. 18 U.S.C. 6005.
84. Kastigar v. United States, 406 U.S. 441, 453 (1972)
85. BNA Criminal Practice Manual, December 21, 1994, page 606.
86. United States Attorney's Manual, 9-23.400 (1988).
87. United States v. Camp, 72 F.3d 759 (9th Cir. 1995).
88. Id. at 761-62.
89. United States v. Anderson, 79 F.3d 1522 (9th Cir. 1996).
90. Id. at 1524-25.
91. Cal. Corp. Code 25531(e).
92. United States v. Anderson, 79 F.3d at 1527.
93. Id. at 1529.
94. Lefkowitz v. Turley, 414 U.S. 70 (1973).
95. Id. at 85.
96. In re Grand Jury Subpoena, 75 F.3d 446, 447 (9th Cir. 1996), citing Cal. Govt. Code 3300-3311 and Lybarger v. City of Los Angeles, 40 Cal.3d 822, 827 (1985).
97. Kastigar v. United States, 406 U.S. 441 (1972).
98. The Ninth Circuit noted the Tenth Circuit has also approved screening of compelled statements to redact privileged testimony before either a grand jury or prosecuting attorneys see the statement, citing Grand Jury Subpoena, 40 F.3d 1096, 1103 (10th Cir. 1994), cert. denied, 116 S.Ct. 1957 (1995).
99. United States v. Montoya, 45 F.3d 1286 (9th Cir. 1995), cert. denied U.S. (1995).
100. Id. at 1290, 1295.
101. See, United States v. Doe, 465 U.S. 605 (1984).
102. Id. at 613, n.11.
103. In matter of Grand Jury Proceeding (Barton), 68 F.3d 193 (7th Cir. 1995).
104. Id. at 196-197.
105. Id. at 197.
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