971 F.3d 40
2d Cir.2020Background
- Felix Sater cooperated with the government; that cooperation was sealed. Oberlander repeatedly sought to disclose sealed materials in civil suits and was enjoined from doing so.
- Judge Cogan (special master) referred Oberlander to the U.S. Attorney for criminal investigation for alleged violations of sealing orders; the EDNY recused and the NDNY took the matter.
- A First Grand Jury (impaneled April 2016) issued subpoenas; its term expired December 14, 2016. In April 2017 the government served a subpoena (dated April 3, 2017) tied to the expired grand jury.
- A Second Grand Jury was impaneled April 19, 2017 and issued a revised subpoena (June 2018 Subpoena) in June 2018 seeking reporter communications and testimony; Oberlander moved to quash and the district court denied relief and ordered production.
- The Second Grand Jury expired October 17, 2018; the district court nevertheless issued coercive civil-contempt monetary sanctions orders after the expiration, which Oberlander appealed. A later grand jury subsequently issued an identical subpoena.
Issues
| Issue | Plaintiff's Argument (Oberlander) | Defendant's Argument (U.S.) | Held |
|---|---|---|---|
| Validity of April 2017 subpoena and effect on jurisdiction | April 2017 subpoena was issued without a sitting grand jury and thus was a nullity, stripping the court of jurisdiction over related enforcement | The subsequent impaneling of a new grand jury and continuation of the investigation cured any defect; court retains jurisdiction | April 2017 subpoena was invalid because it was issued in the name of an expired grand jury; but that invalidity did not automatically deprive the court of jurisdiction over later valid subpoenas issued by a properly impaneled grand jury |
| Power to issue coercive civil sanctions after issuing grand jury expired | Court lost power to coerce compliance after the issuing grand jury expired; sanctions entered after expiration were void | Orders to produce to the government (instead of the grand jury) or subsequent grand juries allow purge and so cure the problem | The court’s authority to enforce the June 2018 subpoena ended when the issuing grand jury expired; the October 23 and November 8, 2018 civil-sanctions orders were vacated for lack of jurisdiction |
| Whether the subpoena was overbroad or issued in bad faith | Subpoena swept too broadly (all communications with reporters about many subjects) and was used vindictively | Grand juries may "paint with a broad brush"; subpoena is presumptively proper and reasonably related to the investigation | District court did not abuse its discretion: subpoena was not unreasonably overbroad and no particularized evidence of bad faith was shown |
| First and Fifth Amendment objections (press-related burden and act-of-production) | First Amendment: subpoena impermissibly burdens reporter-related communications; Fifth Amendment: documents predating corporate formation are personal and protected by act-of-production privilege | Branzburg controls on press communications; documents are corporate records (custodian is corporate) so the collective-entity exception applies | First Amendment challenge rejected; Fifth Amendment claim rejected because pre-incorporation records had become corporate records and fall within the collective-entity exception |
Key Cases Cited
- United States v. Thompson, 251 U.S. 407 (establishes that successive grand juries may investigate the same matter)
- Loubriel v. United States, 9 F.2d 807 (2d Cir.) (subpoena and subpoena duty terminate with the issuing grand jury)
- In re Grand Jury Proceedings (NITHPO), 744 F.3d 211 (1st Cir.) (supports requirement that a new grand jury issue its own subpoena)
- Branzburg v. Hayes, 408 U.S. 665 (press-related communications are not categorically exempt from grand jury subpoenas)
- United States v. R. Enterprises, Inc., 498 U.S. 292 (grand jury subpoenas are permissible so long as materials sought are reasonably related to investigation)
- Braswell v. United States, 487 U.S. 99 (collective-entity rule: Fifth Amendment act-of-production privilege does not protect corporate records)
- United States v. Hubbell, 530 U.S. 27 (act-of-production privilege applies to testimonial aspects of producing documents)
- Fisher v. United States, 425 U.S. 391 (recognizes act-of-production Fifth Amendment protection)