Consumer Credit Insurance Agency, Inc. v. United States

Company, Jackson firm of Kohrman & MERRITT, WEICK, ENGEL Before LPA, plaintiff corpora- legal counsel for Judges. Circuit agents government and Bosse. The tions ENGEL, Judge. Circuit Bravo, A. joined by Kenneth were then Department Special Attorney for the Plaintiffs commenced action Force, and 41(e), to the Strike pursuant assigned district court Rule Fed.R. Justice Crim.P., agents. FBI seeking corporate certain two additional return of books, memoranda, correspondence, books between discussion After substantial corporate like of account and Kalette, an Wachs, Stephen and one Bosse unlawfully alleged had been & Kohrman attorney the law firm of with pursuant grand jury seized to “forthwith” pursu- arrived who had meanwhile Jackson subpoenas duces tecum. call, ap- Jackson Robert H. ant to Bosse’s Wachs, consult with peared on the scene to morning September

On the the sub- to examine Special Agent Terry Lyons A. of the FBI Bosse Kalette concurrence, Bosse, poenas. Prospect Jackson’s building went to at 514 office stay Avenue, Cleveland, the FBI Ohio, Bravo and wherein asked that rec- certain whether to determine had their offices on the fifth floor. On the order Jack- subpoenas. ground floor ords were covered he identified and introduced to ren- leaving Kalette Wachs, departed, then M. worked for son himself Allan who building. Lyons der further counsel. plaintiffs in the indicated, handgun, out to be later turned produced 1. The search of the drawer an imitation. morning building, For of the remainder service of Bosse, into mid-afternoon and Ka- Wachs the subpoenas, guilty the FBI intermittently express lette continued trespass and of threats and intimidation cooperate satisfying their desire to consenting which coerced them into requirements subpoenas. None of delivery of the which ren- documents and else, anyone according these individuals nor dered their consent invalid. findings, to the requested district court’s or evidentiary hearing An was held before directed the the premises. to leave Judge United Robert B. States District Any by examination of the records the Krupansky, who thereafter filed extensive agents was upon found to have been the findings, concluding factual that the Wachs, express of consent Bosse and with tiffs’ consent to the search had been volun- objection no from Kalette. Immediately tary law- and that the documents had been prior to the removal of the fully following the seized. The court made Jackson was by telephone contacted for ad- ruling: vice, yet Wachs, thereafter Bosse and Ka- [Pjlaintiffs’ lette to of cooperate continued Motion for Return with the agents. plaintiffs’ pursuant 41(e), After the review of Property, files Seized to Rule completed, the Fed.R.Crim.P., documents whose return hereby de- must be and is sought is produced now were Court, delivered It appearing nied. to the how- grand jury to the in then-pend- for use its ever, great that the of volume documents ing investigations. subpoenaed petitioners could from under- standably impede their operation the plaintiffs’ motion made before the protracted period, the business a district court charges detailed a number of hereby Court ORDERS the Government that the subpoenas were invalid and that to petitioners originals return to the of all government the conduct under the circum- produced pursuant in- stances here to the was so tainted that in all events entitled stant duces tecum October Essentially to relief. 18, preclude claimed that the not 1976. This Order does over- broad, that the any search warrant was but the Government from all copying a or ruse to gain enable the to officers entrance such records.2 jurisdiction regarded We are proceedings troubled issue the the movant can be the appeal order, independent.” 131-32, the over from the district court’s Id. S.Ct. at 660 (emphasis added). but in view of our Both conclusion that conditions must are in to satisfied. See Hill v. event entitled relief under Rule (9th Cir.), 41(e), unnecessary we cert. find it to resolve the question. gener 86 S.Ct. 15 L.Ed.2d 361 See We do not conceive that the issue of ally Wright, appellate jurisdiction solely by C. Federal Practice & Procedure: is resolved ref- (1969) (DiBella “sharply Criminal 678 at 139 proceeding § erence to a whether criminal has pre restricted” notion that the denial of a been initiated indictment or information. 41(e) Supreme indictment motion is final and under Rule As Court held DiBella United appealable). 82 S.Ct. 7 L.Ed.2d (1962): prein- Bearing upon “the mere circumstance of a in mind the burden is 41(e)] appellants satisfy juris dictment motion Rule [under does not to that it court has ensuing evidentiary ruling Mansfield, transmute appeal, into diction over the see Coldwa independent proceeding Swan, begetting finality Ry. Michigan ter & Lake Co. v. purposes appealability." even for Id. at 4 S.Ct. L.Ed. (emphasis added). upon Chapman Rights Organization, 82 S.Ct. at 660 Based v. Houston Welfare relationship U.S. -, -, 41(e) proceed- between Rule a n. - ing ongoing grand jury process, and the and the we entertain doubts importance avoiding appeal pertains “solely” a bifurcation even whether instant returned, property, no having where indictment has return been see id. the district court 126-29, government originals. Court concluded ordered return ruling upon preindictment words, any a In motion un- other interest which 41(e) appealable following receiving der Rule has business records “Only met; fully limited remaining sought circumstance: if the motion is been relief solely property way appeal deprive government return and is in no is to prosecution against tied a criminal in esse further evidence derived from the documents. circumstances. involuntary under us convinces

Our review of the record did not. Judge Krupansky conduct of there is much if approve we cannot officers here which rely upon confrontation Appellants also be- of the facts to be version Orri- Attorney Bravo Special between Nonetheless, hear- personally after lieved. co, p. m. and who at 2:35 who arrived witnesses, ing Judge Krupansky elected identical with a then credibility to greater weight and assign upon Wachs previously served two than witnesses government’s stresses testimony Orrico’s Bosse. While vol- respect the issue of issue, events nature of the the coercive support finding his untariness. in a testimony places the incident Bravo’s plaintiffs’ agents consented to fact that light: different delivery of documents examination and just at the conversation occurred] [The Jackson, counsel, only after advice of their ready leave and getting we were to time associate, Kalette, who was and his large in area of open the we were located episode and during at the scene the entire end, eleva- the close to the the office in the final deliv- approved who oversaw and I don’t talking, began tors. Mr. Orrico also ery agents. the It is possession of to me, saying that directly to believe at first having to noteworthy that Jackson testified Jury the Grand going he was not to required to advised Bosse that he was not Agent in of then he looked the direction sought. the turn over said, myself you “If want Lyons and plaintiffs’ impressed We are not take me go you’re going to to have to me Kalette, attorney the that characterization in handcuffs.” Jackson, & sent from firm of Kohrman that explained to Mr. Orrico he I then only a clerk” al- was “law and somehow that subpoena, served with a had been by ag- lowed be intimidated himself to to the until such time as a Court ruled gressive government behavior of obey he would expected I that contrary he agents. practice; He to was admitted he in the event did that firm; by was responsible was sent law he not, but to we have no alternative would that accepted purpose, the clients for district to Judge ask a this Federal to the and had been introduced or not a of whether question rule on the He attorney.” and Wachs as “their Bosse warrant should be issued. them, gave they followed that advice to foregoing that Orrico It is clear from the Moreover, advice. the evidence showed objected so much to collection not Jackson, superior, partic- that Kalette’s also here, as to the at issue ipated significantly rendering of ad- personal presence. for his insofar as it called persuasive vice. In absence of other find, to Moreover, court failed the district evidence, we appropriate do not think it is Bravo “threatened” plaintiffs urged, that as assume, attorney’s to rela- because Orrico. inexperience, incompetent tive that he was Bravo recalcitrance proper Following Orrico’s give advice or that consent possi- Bosse, informing him of the actually was upon gave based the advice he talked arguen- (3d 1968), accepting plaintiffs represent even Cir. While the that “are that, only seeking copies proposition suppression on the merits do not [the] return,” claim, 41(e) applies copies necessary consequence well as as en- Rule States, originals. larging granted by v. United Goodman relief the district court 1966). do read G. M. We not that will for the evidence be unavailable grand jury’s Leasing Corp. v. United further see consideration. But addressing Calandra, L.Ed.2d 530 414 U.S. States issue, settling (1974) (exclusionary it. the extent alone To let L.Ed.2d 561 relevant, Leasing sup- inapplicable grand jury proceedings). M. G. that case rule appeal ap- ports the within conclusion that In this we that an circumstance conceive particularly peal solely may premature, view the Court’s copies aimed return Meister, point requisite independence this favorable reference on lack the from the extant jury probe, grand 97 S.Ct. 619. Meister v. United ble publicity employees present adverse which would attend there were other office noncompliance. fact, apparently time, impact un- diminishing at the thus Bravo, attorney known to Jack- a show force. While we do not condone son had likewise earlier counselled Bosse procedure government, employed generate pub- that resistance could adverse finding accept we the district court’s licity. pre- Bosse then talked to Orrico hold, in voluntary. con- We upon comply. vailed him to clusion, “ag- grieved by an search and seizure” unlawful agree We cannot Bravo’s statements under and are thus not entitled to relief to Bosse and Orrico were coercive and over- 41(e).3 Rule agent’s bore their will. The observations untrue, were not shown to have been Finally, we are bound note that they may argu- have in fact been realistic sense, while in technical the motion was prudent ments which a businessman would judge granted fact trial has in determining wished consider they initially the relief which Moreover, comply. whether to Kalette was sought: documents, subject, return of the advice, provide the scene to and Jackson however, government’s right to the to make by telephone. consulted compli- That copies. To the extent the motion for only ance was obtained after extensive con- return stems irom concern for sultation with counsel diminishes whatever privacy interests of themselves and coercive may effect Bravo’s statements clients, remedy their we their conceive that have had. stage protective a at this is to seek order in plaintiffs also claim that the 6(e), the Fed.R. district court under Rule officers, having after executed the search Crim.P., recognize effectively which would having subpoenas, warrant and served the rights, limiting those the disclosure and use immediately should have premises. left the jury proceedings the copies grand of to the We might agree judge if the trial had found prosecutions may criminal that They had been to asked leave. plaintiffs follow their in wake. While not, however, but rather had been so, have seen fit to we no doubt not do Bosse, stay by invited to found the dis carefully judge, that the district who con trict office, court to be in charge of the in place, sidered their interests in the first order that might compliance. assist fully willing and to consider would be able We reject presence the claim that their protective such a order. premises high degree amounted to so a Affirmed. of coercion under the to circumstances as nullify the proper otherwise effect of the WEICK, Judge. Circuit subpoenas producing the documents de sired, since, found, as the majority opin- district court I respectfully dissent. The any physical permits “never entered into ion an unlawful the FBI to effect space express permission without of search and seizure all the books and of plaintiffs,” upon and in fact remained plaintiff corporations records of the for a express invitation do period covering thirty-three to so. It must be months im- seizure, remembered that by using these were business of mediately preceding the as fices, that the compa many Special entered in the Agents as five FBI and one ny permission Wachs, of and with the Attorney Department of of of to Justice entry that daytime, was in the and that coerce immediate with over- government In view of our conclusion that the custodians 652 We note that has delivery records, consented to the not claimed that there further docu- remain unnecessary sought we find it to reach the claim that ments and has not court enforcement illegally subpoenas respect seized other because the evidence sweeping voluntarily provided. scope holding were too is with- Our See, prejudice g., right considered reasonable. e. Hale v. out to resist Henkel, 76, 50 further disclosures. L.Ed.

775 Moreover, views this case broad, grand even if one jury sub- unlawful forthwith gross It a poenas ample duces tecum. constituted is author involving copies, there only Jury process. abuse of the Grand prop may copies property are ity that for return intended, subject a motion erly be the Actually, coercion unless was grand jury subpoenas Smith, could and should 515 F.2d property. Richey v. single have been a United States v. (5th 1975); VonderAhe 1242-43 n.5 Cir. serving Marshal after 1975); (9th Howland, Cir. 508 368 F.2d premises leave the the Marshal should (5th F.2d 35 Phinney, v. 497 Honsucker subpoenaed persons. 1974), cert. U.S. Cir. majority In footnote 2 the is “troubled” Goodman 43 L.Ed.2d S.Ct. jurisdiction ap- this about the over Court’s Cir. v. United peal, unnecessary to resolve found v. United 1966). But see Meister question its because of conclusion curiam). (3d 1968) (per not entitled relief. How- are ignores the fact majority Also the ever, the majority should not be troubled States, 429 Leasing Corp. G.M. jurisdiction because if had no this Court 50 L.Ed.2d majority power without rule on the that the motion the Court found case, merits of its decision on moot both because property return pure merits obiter would be dictum. returned, and be originals been had The Government never a motion filed destroyed. had been photocopies cause jurisdiction, lack appeal dismiss no doubt because such claim would be majority opinion Finally, although the plainly frivolous. plain it is point, on this unclear way present motion “in no tied I against esse prosecution in criminal majority, correctly in footnote DiBella, supra, 369 . . .” movant applicable jurisdictional states rule. In the more at 660. appealable The order the motion “only if Dis since the years than two and one-half solely in no property for return of and is order, separate its two trict Court entered way prosecution tied in esse to a criminal access the docu Juries have had Grand against the . . v. movant . .” DiBella has ments, Jury yet Grand neither States, 121, 131-32, United 369 U.S. relating to indictments handed down 654, 660, (1962). plain 7 614 L.Ed.2d or their plaintiffs these records and appealed tiffs herein have the entire from “[wjhen Thus, not a ease this is custodians. order of the District Court quoted outstanding a 772, ruling time of there began by at the majority, at ante denying the motion for of seized or a release on complaint, return or a detention property. plain Denial of such motion is arrest, arraignment, following or an bail incorrect, ly appealable. ruling If that was ,” information, . . Di or indictment be, as I was believe it to the District Court 660, 131, 82 at Bella, at S.Ct. supra, 369 U.S. entitled, sponte, sua authorize prosecu “no criminal that there is in fact so copies Government to make because the movant,” against United pending tion entire order was invalid. 530, 533, Ryan, 402 U.S. States The majority would use the “relief” (1971). Sov 29 L.Ed.2d 85 See granted by Court, the District which was States, 544 F.2d ereign News Co. v. United sought by party, change never either curiam), 1976) cert. de (6th (per 909 Cir. brought nature of the motion 73 nied, 54 L.Ed.2d 98 434 U.S. S.Ct. tiffs. The have fact is (1977). sought prop- never than the other return of was final and my view the order erty. simply There is no treat the reason to Wil- States v. fully appealable. United See motion other than as the have 1972) (per liams, (6th brought it. Cir. 459 F.2d 909 776

curiam); Coury v. United 426 enees to F.2d “business” which had to dis- be (6th 1970). 1354 Cir. cussed with His could Wachs. street, have been not. served on the II majority makes much of the fact I am not unmindful that the voluntari- agents allegedly “requested” that the ness ques- consent in this case is “a assembly to remain in order aid in tion of fact to be determined from the however, They ignore, documents. the fact totality circumstances,” of all the Schneck- Agent Lyons’ testimony showed the Bustamonte, loth v. any “request” absence of for the federal As agents premises to remain on until after such, the finding District Court’s be must already had been there more than clearly it, erroneous we before can overturn Moreover, App. 76, an hour. there is Hearn, United States v. 496 F.2d suggestion no whatever that the (6th 1974); Cir. recently but as we said “requested” per- custodians ever the FBI McCaleb, States v. Special help sonnel to summon the Attor- (6th 1977): Cir. ney Bravo and two additional FBI proved Consent “must ‘clear and agents that he brought with him. positive testimony,’ Amos v. United apparent It is that from almost the out- set, agents three FBI and one Government L.Ed. 654 unequivo- ‘must be attorney on the cal, specific intelligently given, un- premises. agents, Unless the from the be- by any coercion,’ contaminated duress or ginning, intended to enforce Bomar, Simmons v. subpoenas with the can I find no reason 1965).” Hearn, United States v. force, particularly such an initial show [Emphasis F.2d at 244. added.] after the execution search warrant outset, At it must be noted toy pistol removal of the which had majority ignored has totally the fact that paper weight, been used as a and which was engaged is, FBI minimum, in what found in a desk drawer. the highly procedure unusual of using as As soon had executed many as five FBI Special one completed search warrant and had service Attorney to serve and “enforce” forthwith te- three forthwith duces grand jury subpoenas duces tecum. The cum, had finished their task practice, normal and the one which is con- immediately. should left premises templated by the Federal Rules Criminal purpose remaining The obvious Procedure, and Civil is that will plaintiffs’ place the business was by a U.S. Marshal. Fed.R.Cr.P. coercion, duress to compliance enforce 17(d); 45(c); L.Cr.R.3(d) Fed.R.Civ.P. see subpoenas. with the forthwith This (N.D.Ohio). majority ignores The also the not their they function had no lawful fact plaintiffs’ that the building was right engage activity. to in such equipped with a security system. locked agents The through achieved admittance In this the use of the context forthwith system the only making after obscure refer- command itself became The rec- coercive.1 course, hand, 1. Of subpoena the a use of forthwith one the traditional on the Supreme will not recognized in most the circumstances work to vitiate other. As Court voluntary Dionisio, compliance. Certainly otherwise it States v. 410 U.S. proper require (1973): is to S.Ct. forthwith L.Ed.2d return where the grand jury has to compulsion by reason grand jury believe that the items The exerted a sub- might destroyed. danger poena otherwise be by But the differs from an the seizure effected subpoena places forthwith is that it a arrest premium party’s knowledge right the abrupt, on of his “The is is with force latter effected subpoena to refuse demeaning until the has been or tested the threat of it and often court. Its use to tends blur the distinction A is circumstances .... searches, legal between traditional arrests and on served in the same manner as other sider, Schneckloth, supra, at 412 U.S. agents that federal more shows the ord The is not conclusive. they emphasized expected that once than plain- the that undisputed evidence showed compliance. App. immediate criminal was unfamiliar with attorney tiffs’ Special the Attor- agents no time did or At surrounding procedures the practice and inform custodians ney Bravo the this fact was subpoenas, and that forthwith comply to in order to right refuse to 222, 225. App. to Bosse. communicated validity subpoenas. test the seek to salutary of counsel’s effect Thus the normal Schneckloth, See case. in this presence was diminished anything, 2041. If the inference from that their statements was attorney Jack- majority states that The comply had no to custodians choice but “required” to he was not Bosse that son told appears It forthwith com- once. that that a I believe the documents. turn over simply agents with an provided mand portion of the record reading of that fair ei- premises excuse to remain until on that Bosse Jackson advised shows that they or were ther was effected that Jackson physically,” could “resist to leave. forced consequences legal what the did know sug- would Jackson of such an action be. may also be noted that District It subject might resistance gested such that provided van found that the FBI Court App. 220-28. Bosse arrest. to carry only after the to records they that had no tiffs’ custodians stated advised that Jackson never plain It transport to the file cabinet and right validity means to test that Bosse had While this subpoenas by three cartons documents. grand jury of the forthwith record, it is also finding supported turning filing prior in court a motion by suggestion with a plan Any consistent over the documents. immediate custo- simply wrong. ensure that obtained contrary is Indeed, Agent Lyons dy of the documents. the advice relies on majority The also chose to obtain admitted Kalette, Jackson’s attorney provided by subpoe- a forthwith the records means of showed The young evidence associate. proba- na duces tecum lacked because initially tried that Kalette rather plainly, ble cause obtain a search warrant. pending the quo status only to preserve grand jury it is While axiomatic that majority attorney Jackson. arrival of probable need not have cause issue And to contend otherwise. appear does not subpoena, Bisceglia, see United States Jackson after found District Court 141, 147-48, pursuant left, activities Kalette’s L.Ed.2d 88 itself can- simply no There instructions. Jackson’s not be transformed into an instrument ever advice that Kalette’s evidence illegal search or seizure is effectu- offered any better than or different DeForte, Mancusi v. ated. Jackson. see to note significant It is also v. Ryan, United States 455 F.2d 728 represent new law firm hired 1972). immediately af- matter almost them in this to the majority heavily delivered relies fact ter deliv- of the days plaintiffs’ Within six Jury. custodians acted with Grand records, presently motion ery the advice and of While of the assistance counsel. District was filed presence is a factor this Court counsel to con- before generally with- whatever; are process; stigma it involves no if Since intervention, judicial re- inconvenient, any appéarance out antecedent the time this ap- it altered; where viewing be generally should cautious it courts can and remains at all may requirement have supervision pears the forthwith under the times control of a preclude review. been used court.” (Schwartz), Cir., 2 States Doe 457 United v. 895, F.2d at 778 McCaieb, plaintiffs evidently (6th 1977), 552 F.2d 717

Court. The dis- Cir. coercion,” “any quality satisfied with the the advice and condemned duress or id. (emphasis added), representation provided by quoting and Ka- 721 v. Jackson Simmons Bomar, 365, (6th 1965) (per lette. 349 F.2d 366 Cir. curiam). majority The does state: Because of the evidence uncontroverted [Tjhere is much in the con- coercion, as to duress and the District

duct of the officers here which we cannot Court’s conclusion that approve plaintiffs’ version of the facts if voluntary is supported by substantial is to be believed. evidence, clearly and is erroneous. Nevertheless, politely the majority however it, wishes to view it is clear from the record Ill Special Attorney Bravo admitted that are not entitled to relief he threatened Orrico with arrest 41(e) under Fed.R.Cr.P. unless Bosse publici- threatened with unfavorable established that are entitled to ty initially when comply Orrico refused to possession property lawful which has subpoenas. with the primary Whether his illegally been A objection seized. duces personal appearance was to or to illegal production tecum will constitute an seizure such the fact sweeping when it is “far too in its terms to that Orrico was when threatened he indi- be regarded cated a desire to as reasonable.” Hale v. Henk compli- resist immediate el, 43, 76, 370, 380, ance. 201 U.S. 26 S.Ct. 50 (1906). g., L.Ed. 652 See e. Oklahoma Press Accordingly, assigns even if greater one Publishing Wailing, v.Co. 327 U.S. weight credibility testimony 494, (1946); 66 S.Ct. 90 L.Ed. 614 Brown v. witnesses, the Government’s the following States, 134, 142-43, 48 United 276 U.S. emerge First, facts as uncontroverted: 288, (1928); Boyd 72 L.Ed. 500 v. United three, many six, least and as Government States, 616, 621-22, 524, 116 29 U.S. 6 S.Ct. agents (including Special Attorney Bravo) (1886). present subpoenas L.Ed. 746 plaintiffs’ on premises were unreasonable unlawful. and therefore over an hour before -“request” was they stay Second, made that at all. The cases demonstrate that in addition FBI and Special Attorney Bravo re- requirement Jury pur the Grand peatedly emphasized that the forthwith lawfully sue investigation only “for command of the mandated im- purpose,” authorized Press Pub Oklahoma compliance. mediate Third, Co., 209, lishing supra, 327 U.S. at 66 S.Ct. custodians were never informed Jury subpoena a Grand duces tecum Government right to refuse somehow scope must limit its to matters compliance in order to validity test the lim relevant to the and must investigation, subpoenas. Fourth, Special Attorney specifying the doc its burdensomeness admittedly Bravo threatened cus- particulari uments desired reasonable todians with arrest and with unfavorable ty, time by focusing a reasonable publicity. Fifth, normally beneficial ef- Id.; period. Gurule, v. 437 United States fects of the advice presence of counsel 1970), cert. (10th F.2d 244 denied were reduced in Attorney this case because sub 403 nom. v. Baker United Jackson expressed ignorance (1971); 29 L.Ed.2d rights tiffs’ under a forthwith Schwimmer v. tecum, duces obtain, did Cir.), cert. promptly, other counsel to file their motion McMann L.Ed.2d for the return property. S.E.C., (2d Cir.), cert. de my opinion nied, duress and coercion 81 L.Ed. exerted here greater was much than that evaluating burden And which was involved in United v. imposed, important States it is to consider whether

779 contracts, treaties, or under- agreements, sought part ongo of an are business, any companies insurance ing standings relate a defunct with or instead Henkel, contracts, operation. supra, 201 treaties any agreements, v. U.S. Hale 76-77, 370; Horowitz, any at 26 In re 482 understandings S.Ct. automobile or Cir.), (2d cert. 414 trailer, U.S. or mobile home dealers. boat cf. S.Ct. produc- they required the terms By their v. Wheeler United and records” of five of “all books tion addition, S.Ct. 57 L.Ed. 309 including, not to: but limited companies, may appro other factors be considered book(s), correspondence, corporate minute priate Publishing cases. Oklahoma Press account, memoranda, including books Co., 494; supra, U.S. at statements, ledgers, bank journals all Boyd v. supra, 116 U.S. at checks, stubs, savings check cancelled 630, 6 S.Ct. 524. books, insurance of all records account requirement There no fixed . written, printouts. computer policies subpoenas recite of the purpose either the investigation precise or relevance limited items were categories of Only two although sought, each these mat- document type of transaction: particular to a may inquired ters be into District contracts, trea- agreements, . all appropriate Court on an motion. What is any insur- ties, understandings with or however, required, agreements, con- companies ance express duces tecum as to the limitations tracts, understandings with or treaties period time involved and either as trailer, boat, automobile, or mobile subject matter or the class of documents dealers. home both, sought, or appropriate. precise as No subpoenas requirements formula can fairly be stated. be said that It can case, vary “reasonableness” each all of the production will required of two period but will certainly almost include considera- records for the tiff's business immediately preced- sought, tion of the type years of documents months and nine age documents, subpoenas. availability of the of the of the ing the date of service Moreover, find a requirements particu- it would be difficult business, lar docu- type production as well of investi- case where the clearer gation stop to the completely put a being conducted. See Oklahoma “more ments Co., Hale v. Publishing supra, Press U.S. at . . .” [plaintiffs’] business 208-09, 494; Henkel, Henkel, at supra, Hale 76-77, 370.

In the com- case recognized explicitly District Court production manded the forthwith of: origi- when it this ordered the return of Moreover, noteworthy that all books of Consumer Credit nals. and records substan- Inc., fourth Agency, Judge quashed Insurance Fideli- District Consumer one of Inc., ty Agency, tively Lee Hoffman identical Insurance Paczolt, Associates, be- Paul plaintiffs’ employees, A. Mills and As- Thomas sociates, subpoena was Inc., and cause the American International Court found Jury Co., Ltd., In re Grand the period impermissibly Assurance from overbroad. Paczolt, 1,1974 9,1976 Custo- January September Paul said Subpoena Addressed (N.D.Ohio, include, to, Records, records to limited No. C—76-998 dian of holding by the same corporate book(s), 17, 1976). This correspondence, Sept. minute plaintiffs’ con- memoranda, supports including Judge books account District forthwith statements, three identical journals ledgers, bank all tention invalid as checks, stubs, present case are savings cancelled check unrea- books, impermissibly overbroad being account of all insurance records written, policies computer printouts, all sonable. brief,

In its on the Government relies States, Beilis v. United BUSH, Plaintiff-Appellant, Hubert proposi for the tion subpoena that a tecum which duces INC., INDUSTRIES, STATE requires production covering of records Defendant-Appellee. years two is not Aside invalid. from fact that Beilis deals with an Fifth asserted No. 77-1215. privilege, Amendment and not a Fourth Appeals, United States Court of violation, important Amendment it Sixth Circuit. note Beilis been had judicially records, limited to financial Argued Feb. 1979. n.1, U.S. at 86-87 & and that June Decided partnership related no longer not, case, It existence. did

stop operation of plaintiffs’ business.

Similarly, Wheeler v. United su-

pra, Government, also cited involved corporation, records a defunct

the subpoena particularly stated the classes sought, particular records if not sub-

ject 483, 489-90, matter. See 226

S.Ct. 158.

Finally, Brown v. United

the subpoenas specified subject matters addition, the requested records.

Brown previously complied had with an

identical difficulty. without U.S. at 48 S.Ct. 288.

In this case Jury the Grand forthwith

subpoenas duces tecum amounted to ille-

gal demanded, search and They seizure.

without any substantial limitation as to the

subject matter of the class of document

sought, the production forthwith all of

the business records of the for a period years of two and nine Be- months.

cause command, of their sweeping and be-

cause they focused most current

records, these unreasonably bur-

dened the imper- and interfered

missibly with the ongoing operation

businesses. Such an practice unlawful stopped

should be its tracks the Court.

The judgment of the District Court

should be reversed and the cause remanded with instructions to order the return

copies of the plaintiffs. records to the

Case Details

Case Name: Consumer Credit Insurance Agency, Inc. v. United States

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 13, 1979

Citation: 599 F.2d 770

Docket Number: 76-2583

Court Abbreviation: 6th Cir.