In Re Grand Jury Subpoena Served Upon John Doe, Esq., Richard Roe, Intervenor-Appellant v. United States

that prosecutor did not violate rule

in effect of at the time his actions.5 In re GRAND JURY SUBPOENA DOE,

SERVED UPON John Petitioner, Esq., Juror contacts the instant case did not any prejudicial cause evidence to be ROE, Richard Intervenor-Appellant, any exculpatory admitted at trial or evi suppressed Also, dence to it. de fense counsel received disclosure of the America, UNITED STATES of possessed by government, Respondent-Appellee. tardily. even if Although somewhat such place disclosure on the day took fourth of No. Docket 84-6319. trial, lasted the trial six weeks and United States Court Appeals, involved more than witnesses. In addi Second Circuit. tion there is no evidence that contacts with jurors from first trial resulted in a Argued Dec. 1984. prejudiced jury for biased the second April 1, Decided 1985. trial. as a Consequently, matter of demon reality, strable question the contacts in did Rehearing En Banc Granted impugned not or distort fairness and 16,1985. July integrity judicial fact-finding process warrant, way such a pressed by as to as appellant, either a reversal or dismissal of therefore,

the indictment. The trial court

committed no reversible error. stated,

For the reasons the district court

is affirmed. Moten, In Commonwealth Massachusetts the United States v. applicable (2d A.B.A.J., rule is set out in Cir.1978); Massachusetts Su- supra at 158. 3:07, preme DR7-108(D), Judicial Court Rule as Id. at 385 N.E.2d at 519. follows: Appellant argues gloss that this decision is a discharge jury After DR7-108(D), from further con- and that because the United lawyer sideration of a with case which the District Court District of Massa- connected, lawyer ques- was shall not ask 5(d)(4)(B) chusetts adopts Local Rule its tions of or make comments to a member of guide professional conduct in this case the jury that are calculated to harass or em- Responsibil- Massachusetts Code of Professional juror barrass the or to influence his actions in ity, by "as from time amended to time [the jury future service. highest commonwealth],” prose- court of the rule, Subsequent to the effective date of this cution here violated both state and federal court Supreme Court Judicial held in Common- However, ethical standards. Judi- Fidler, 192, 203, wealth v. 377 Mass. 385 N.E.2d Fidler, DR7-108(D) cial Court did cite to not (1979) "counsel, litigants, prosecutor so the federal could have believed acting independently those for them not applied only that Fidler court, to conduct in the state jurors contact after a verdict is rendered." It only by and that he was bound lan- reasoned DR7-108(D), guage expressly which does not jury We system protected think the is best seeking prior permission mention requiring any post-verdict a rule inter- interviews, see, e.g., Annotated Code Profes- counsel, jurors . litigants, views of or their (ABA 1979); Responsibility sional Found. agents place supervision take under (ABA 1978). Responsibility 163 Professional judge. permit direction of the We decline to clarity, give view of the lack we shall interviews, post-trial unrestricted as we think prosecution the benefit of the doubt in this practice important such a would defeat the making while clear that we concur in the ration- protected by interests restrictions on the use expect ale of Fidler and will counsel to adhere to juror testimony impeach verdicts. future, that rule in the District Moreover, permitting unbridled interviews of Puerto Rico Massachusetts and where there jurors jurors, could lead to harassment of courts, requirements effect in the to this local exploitation jurors' thought processes, but also in districts the other within this circuit. diminished confidence verdicts. See

Timbers, Judge, Circuit filed dissenting

opinion. Baker, Jacobs, illegal would, M. H. activity.

Mark John New commission of This intervenor-appellant. City, Government, York according to the tend to indi- enterprise cate the existence of an within Guadagno, Atty., Asst. U.S. Michael A. meaning of the RICO statute and to Dearie, Atty., Raymond U.S. Edward A. J. point to as the Client leader. an effort Justice, McDonald, Dept, Brooklyn, actually paid to whether establish Client or N.Y., respondent-appellee. for arranged legal representation, the TIMBERS, CARDAMONE and Before subpoena caused a duces tecum ROSENN,* Judges. Circuit upon attorney, to be served his lawyer represented approxi- who has Client ROSENN, Judge. Senior Circuit mately years. the last 18 subpoena presents important question an This case attorney’s appearance called for the concerning to the have “fees, monies, production the of records of choosing. The issue arises in connec- one’s received, property things or other of value grand jury subpoena tion with a duces te- accepted, transferred or held ... [him] Doe, attorney, served John cum behalf, from, of, on his on account or on (Client), Esquire. Richard Roe individuals, twenty-one behalf of” several investigation long- grand jury’s the and a of whom are members of Client’s “crew.” attorney, time client of the obtained inter- 5, 1984, attorney from On October the appeals venor status and an order moved denying quash subpoena. to pursuant a motion for an order to Fed.R.Crim.P. contends, and the Government con- Client 17(c) quash grand jury subpoena cedes, enforced, that if the ground that the Government had not attorney disqualified as counsel if will shown, among things, other either the rele- Client is The Government did indicted. scope vance of the materials to the of the showing make a of relevance. The district inquiry particular or a need for the materi- court, however, rejected the contention that sought. argued als also required the Government also should be employing subpoe- the Government was showing make a of need before weapon” na as the “ultimate disqualify compelling testify. We re- him from the case. The Government re- verse. sponded by submitting an affidavit describ- ing scope grand jury inquiry I. sought. the relevance of the materials A jury in the Eastern District The district court denied the motion to York currently investigating New an or- quash, finding that the information re- ganized family. particular crime Of rele- quested was relevant to grand jury’s vance is the consideration of grand jury inquiry and that the attor- evidence that establish that a certain ney why had shown no reason the material family faction of the crime constitutes an provided grand jury. should not be to the “enterprise,” as that term is defined in 18 § possibility The court also held 1961(4) (1982) (a portion U.S.C. statute), lawyer’s disqualification eventual was RICO Client headed that “enterprise.” part inquiry, outweighed by As of this far importance determining is interested in presenting grand jury. the evidence to the for, paid whether Client or otherwise ar- agreed The Government for, forbear

ranged legal representation enforcing (as subpoena pending ap members of his the faction is “crew” known) apprehended during peal, granted who were and the district court inter- * Rosenn, designation. Honorable Max Senior United States Circuit, Judge sitting by Circuit for the Third purpose broad, venor Client for the of here as to its very status exceed but not limitless, appeal.1 bringing this discretion this area.” In re Matters, Jury

Grand F.2d at 16. II. Although jury has the jury subpoenas are issued procure Grand and duty every man’s evi dence, Dionisio, the court under the court’s clerk of United States 9-10, 764, 769-770, anyone requesting seal in blank to them S.Ct. L.Ed.2d (1973), grand jury’s approval powers court or are not prior without control. limitless; 17(a). they subject Although court’s Fed.R.Crim.P. sometimes supervisory powers under Fed.R.Crim.P. viewed as instrumentalities of 17(c), power which include the jury, universally “in fact they are almost modify subpoena “if compliance would be instrumentalities At oppressive.” unreasonable or In exercising torney’s investiga or of some Office power, his supervisory judge may “A prosecutorial department tive or of the ex grand quash jury subpoenas in proper Jury ecutive branch.” In re Grand Pro 17(c) powers exercise his rule ... even 85, (3d (Schofield), ceedings 486 F.2d 90 though subpoenaed are materials not Cir.1973). protect parties against To by statutory, constitutional, covered or subpoena abuse power, of this Fed.R. See, privilege. common law e.g., United 17(c) empowers court, Crim.P. the district Winner, (10th v. 641 States F.2d 825 Cir. motion, quash subpoena on or modify 1981).” Matters, Jury Re Grand 751 compliance “if would be unreasonable or at F.2d 18. oppressive.” by As noted the First Circuit 701, (1st in Pantojas, In Re 628 705 F.2d helpful It analysis also be to an Cir.1980), recently and reaffirmed in In Re issue briefly before us to state some Matters, 13, (1st Jury Grand 751 F.2d 16 tangential related or matters that need not Cir.1984), practical responsibility for “[t]he considered. This case does involve not. controlling grand jury lies excesses with integrity of the sta court, grand district which the rights during tus sixth amendment rely subpoena must for jury proceedings.2 undisputed It [enforcement] is contempt procedures.” Our standard of right sixth amendment counsel review of district court’s decision to does not attach jury stage. at deny quash subpoena the motion to attorney-client is privilege Nor this arbitrarily case is whether it upon “acted so stake.3 Our is focus a narrow issue Cir.1980); general person 1. The is that Jury, rule served with a In re November 1979 616 Grand subpoena appeal (7th Cir.1980); may not Jury a denial of a motion 1021 F.2d In re Pro Grand quash resisting subpoena ceedings (3d (Appeal Corp.), without first FMC 604 F.2d 798 being Cir.1979); contempt. Parsons, found in Corp. See Cobbledick v. Chemical Velsicol v. States, 323, 540, Cir.1977), denied, (7th United 309 U.S. S.Ct. 60 84 561 F.2d 671 cert. 435 different, (1940). (1978). Oberkoetter, L.Ed. 783 The rule how 942 But see In re 612 ever, (1st Cir.), denied, app. stay when the is directed to a third F.2d 15 444 U.S. party seeking (1980). subpoe and the one 1041 na its claims that enforcement violate will one rights. or more of his constitutional See pp. Perl See 2. 972-973. infra States, 7, 417, man v. United 247 U.S. S.Ct. 38 62 Thus, (1918). L.Ed. 950 a vast of the privilege clearly attorney-client of no circuits, Circuit, including the Second has al help appellant recently to the here. This circuit appeal lowed an immediate in cases where a relating held to fees and See, party's subpoenaed. e.g., attorney is In re not, sources such fees in most circumstanc- (Leon Special Jury Harvey), No. es, Grand 81-1 676 protected privilege attorney-client 1005, (4th Cir.), F.2d 1008 vacated with Shargel, from disclosure. See In re 742 F.2d 61 drawn (2d Cir.1984). when indicted and he special No circumstances ex- (4th Cir.1982) (en fugitive, became 697 F.2d 112 empting appellant application this rule banc); Proceedings Jury (Jeffrey In re Grand present the instant cf. Fine), (5th Cir.1981); Liebman, (3d Cir.1984), 641 F.2d 199 In re Grand and the 742 F.2d 807 v. Katz), (2d Jury (Gary Proceedings F.2d appellant 122 this. concedes defense, meaningful preparatory rela- and in the spectrum trial,4 justice stages long tionship and the administration of before an accused has represented adversary system right of law: did the the fundamental under unreasonably failing district court act “of his own choice.” Powell v. counsel Government, 58; require Alabama, 53, enforc- 287 U.S. at 53 S.Ct. at ing Curcio, served counsel v. see also United States jury investigating testify 14, (2d Cir.1982); before a v. United States client, showing of the (3d d Flanagan, 679 Cir. attorney’s need for the relevance of and 1982), grounds, rev’d on other 465 U.S. testimony and records? (1984). 79 L.Ed.2d 288 104 S.Ct. adversary system A of our cornerstone course, right is not Of abso an ac- justice is the criminal example, pointed lute. For it has been out represent him. cused to have “protection [provided by right] assist- considered the Colonists preventing arbitrary goes no further than cases to be ance of counsel attorney.” dismissal of the chosen Id. at adoption of before the fundamental even Moreover, 1075.5 it is clear sixth and the Bill of the federal Constitution does at amendment to counsel Alabama, 287 U.S. Rights. Powell v. See grand jury stage. at the Brewer tach See 55, 61-63, 45, 61-64, L.Ed. 158 53 S.Ct. Williams, 97 S.Ct. amendment, incor- The sixth (1977); Illinois, Kirby L.Ed.2d porated of the role of counsel this view 1877, 682, 92 S.Ct. 32 L.Ed.2d 411 prosecutions in the ac- providing that all (1972); Vasquez, United States v. enjoy right to have the cused shall (2d Cir.1982) curiam). (per In the in 16 defense, gave assistance of counsel for his case, however, stant we are not concerned principle dimensions. they apply, with sixth amendment as a that right ... is of such character “[T]he during apply, jury or do not violating it cannot denied without those be Rather, investigation. the facts of this jus- principles liberty and ‘fundamental accurately impinging case are more seen as of all our civil tice which lie at the basis right on Client’s to have counsel of his ” political institutions.’ Id. at 53 and choosing in the an indictment is re event Louisiana, (quoting at 63 Hebert v. S.Ct. against point turned him—a at which the 103, 104, 71 272 U.S. 47 S.Ct. unquestionably sixth amendment becomes (1926)). L.Ed. 270 is, applicable. That this is not a case Court in more recent where a witness seeks to have counsel, plain wording or have years that the the assistance of has observed him, guarantee appointed appearing encom for of the sixth amendment while before Instead, seeking passes grand jury. nec Client is counsel’s assistance whenever meaningful preserve right defense. his have counsel of his essary to a assure 218, 225, Wade, choosing in own the event he is indicted. United v. States now, 1926, 1931, right protected If the is not once the 87 S.Ct. 18 L.Ed.2d 1149 assuring right already that does attach will have been It therefore follows confrontations, cogently 4. Justice Brennan in United ence of counsel at such critical observed 226-27, Wade, itself, operates S.Ct. States v. U.S. at at assure that the as at the trial 1931-32, right that the to the assistance of coun- protected consistently accused’s interests will be may only important sel is not trial but it be at adversary theory prosecu- of criminal with our equally important preliminary pro- in the (Footnotes omitted.) tion.” ceedings. principle "It is central to that that trial, presence addition to counsel’s at the ac- Furthermore, give way right must when guaranteed cused is not stand that he need actual serious conflict of interest on there is an against prose- any stage alone the State at attorney representing part two co-de- of an out, cution, informal, formal or or in court Dolan, 570 F.2d 1177 fendants. United States might derogate from where counsel’s absence 44(c). (3d Cir.1978); Fed.R.Crim.P. trial____ pres- the accused’s a fair meaningless. placed position This has becoming rendered circuit a wit- that “the to obtain the assist- against stated ness his risking client or con- all crucial stages ance of counsel at tempt. In either strong there symbol reality if both and of a essential possibility wedge that a will be driven preserved.” trial are to fair be the attorney between and client and Mohabir, (2d F.2d relationship destroyed. will be Cir.1980). though yet Even a trial has not Special (Leon re Grand Jury No. 81-1 begun, attorney’s where the client is the (4th Harvey), Cir.), target grand jury investigation, vacated and withdrawn when requires of fairness realism that sense and indicted fugitive, he became a reasonable effort be made the interim (4th (en Cir.1982) (foot 697 F.2d 112 banc) disrupt ongoing omitted).6 note relationship. The Government that concedes enforce- background It is ment may well lead to the subpoe- Government has chosen issue a being disqualified from further lawyer na a criminal defense who representing targets affected his testi- dec- represented his client almost two mony. Nevertheless, argued it is ades. The issuance of such public interest in discovery prose- troubling for the Model Code of Profession- cution crime prece- takes necessarily Responsibility al states that: dence over the to have counsel of If, undertaking after employment in con- choosing, thereby eliminating one’s templated litigation, pending lawyer or any preliminary showing need for of need lawyer learns it is obvious that he or a enforcing subpoe- relevance before in his firm called may be as a witness course, na. public Of interest does client, may than on of his behalf he precedence prosecution, take representation ap- continue the until it is Client, however, deny Client does not it. parent testimony is or claims precedence such is exer- prejudicial to his client. cised, the Government should least show Responsibility Model Code of Professional the of and relevance the need for his attor- 5-102(B) Thus, by calling DR an testimony. ney’s agree. We attorney against client, as a witness the general rule, surely setting is the As a is stage Government it true that no attorney’s disqualification. showing the ultimate preliminary relevancy of need or recognized in The Fourth Circuit has a required person may this before subpoe a be involving case similar circumstances: appear. Liberatore, naed to See In re 574 (2d Cir.1978). rule, subpoena is 82-83 This against When a issued an however, ongoing attorney-client in an re- is not absolute where constitu lationship, attorney may the be rights implicated. well tional are See id.7 In theless, Similarly, Virgin possible Branzburg 6. in the ruling Government Islands it is that “the (3d Zepp, 1984), may by Cir. the court special be limited the nature First a the reversed conviction where counsel for interest Amendment advanced there." Y. Kami- stipulated a fact the sar, defendant harmful Israel, W. LaFave & J. Modern Criminal yet defendant's case remained and as counsel. (5th 1980). Procedure ed. concluding In that this action denied the client Branzburg chilling The the Court looked at counsel, right to the the effective assistance rights first amendment that re- determined " stated: The framers of the amend- [sixth] court quiring preliminary compelling showing a propose ment did not it to an assure individual be of it need would little use since would not be testify against a his own client judge a clear when would or would not find a participate still in case.” Id. at 138. "compelling need" for the information. See 702-03, Branzburg, 408 U.S. at S.Ct. at 2667- suggested by As in 7. Court Branz- words, case-by-case analysis, 68. A in burg Hayes, S.Ct. rights however, chill first because (1972), would still amendment L.Ed.2d even where consti- uncertainty deter infor- implicated, involved would rights preliminary tutional showing a Thus, speaking press. an inappropriate. mants from to the of need Never- F.2d at 1009. It then stated being subpoe choice.” 676 party instant that: target of the attorney for a naed is the thus, indi balancing public as we have In interest in effec-

investigation and activity by earlier, investigation are at of criminal tive cated pri- therefore, grand juries the substantial must, carefully bal stake. We proper on- preserving vate interests of a rights of implicated constitutional ance the relationship and going attorney-client investigation grand jury target of the communications, protecting confidential choosing in the of his own to have counsel an unreasonable burden to re- significant pub indicted and event he is prelimi- quire to make discovery and effective lic interest showing by nary affidavit. of crime. prosecution The court then went on to Id. at 1010. proper standard to be determining the In present what must be determine extraordinary situation in- in this applied concluding “in preliminary showing, subpoena issued volving a situation, Attorney the United States very grand jury investi- testify before showing include in his must client, guiding is little case gating his there sought demonstration that the information really point only case that law. investiga- for an is relevant to and needed 81-1 Special Jury No. is In re Grand by grand jury.” being tion conducted Harvey, In the at- (Leon Harvey), supra. original). (emphasis at 1011 Focus- Id. target grand jury were sub- torneys for ing component, the court on the “need” appear poenaed to that the Government must “show stated money property records of all with the the infor- important affidavit an need for on behalf of received from and disbursed added), sought,” (emphasis mation id. attorneys represent- had their client. inquiries further noted that “there are two throughout target ed the prosecution making address must when prior prosecu- proceedings and First, informa- showing of need. is the subject of the tions were also the sought necessary important tion investigation. support In grand jury’s Second, grand jury investigation? is the subpoena, motion to subpoenaed attorney the best source for argued that the documents were n. the information?” Id. at 1011 and work- protected that this court The Government contends the sixth product privileges, as well as has declined to follow the rationale Har motion, response In to this amendment. contention, support vey. of this it cites in- showed Government See, Libera e.g., numerous cases. In re vestigation possible related to tax viola- (2d Cir.1978); tore, 574 F.2d In re subpoenaed documents tions and that 72, Cir.), Horowitz, (2d 482 F.2d 81 cert. proving in the contem- would be useful denied, 867, 64, 414 38 U.S. 94 S.Ct. Nevertheless, plated charges. the district (1973); v. Doe L.Ed.2d 86 United States ultimately court denied the motion to (2d Cir.1972), (Schwartz), 895, F.2d 457 898 target appealed. and the 1376, denied, 941, 410 93 35 cert. S.Ct. court, 608, reversing (1973); In the district the court L.Ed.2d Colton v. United noted, here, (2d States, 633, Cir.1962), appeals first as we have “subpoena implicate^] denied, tar- 83 9 cert. S.Ct. [the (1963); Heuwetter, get’s] to counsel of his L.Ed.2d 499 In re privilege) pro- would not privilege necessary ed a less than absolute would be absolute protection, having lawyers and an absolute of their vide privilege real such deter individuals from was, Court, according appro- Rather, encourage not it would own choice. priate light importance presenting in of the attorney- protection providing additional grand jury. information to the Thus, all relevant Branzbwg, relationship. re- unlike client prob- In the instant there is no similar showing mean- quiring of need would not be a a lem, privilege necessary. is not for an absolute unnecessary gesture. ingless or (as case-by-case analysis A would be necessitat- showing A of relevance and reasonable (S.D.N.Y.1984). inary 125 n. 5 F.Supp. cases, however, Compare Jury In Re Mat reveals need.9 Grand of these review (1st Cir.1984) ters, (affirming readily distinguishable F.2d 13 one are all but case; only here. under in quashing subpoena we have consideration similar the case is that sub significant factual difference Horowitz, Liberatore, and example, For poenaed attorneys serving were as defense subpoenaes not did involve Schwartz related, criminal pending in state and concerned lawyers, Colton served on conclusion, proceedings). In attorney-client privi- reaching this the intricacies one’s right to counsel of lege, necessarily have the task of not we are faced with exception lone is Heuwet- choosing. The competing de balancing two interests —the dealt ter, in the district court a case which in the all present public sire to interest that no Harvey concluded directly with grand jury relevant information relevancy is re- showing of need such interest, adversary system under our circuit, it be. in this nor should quired law, maintaining integrity in criminal coming to this n. 5. In F.Supp. at attorney-client relationship. however, conclusion, the court relied Horowitz, Colton, re and In three cases— carefully weighing important these in- Jury Proceeding, 721 Grand terests, points support two pro- additional Cir.1983) in- (9th completely —that attorney-client tection for the relationship. a Horowitz dealt with apposite. First, unbridled use of the non-lawyer, was decided to a issued Colton potentially Government, would allow the privi- attorney-client ground on the cases, this and future unilaterally decide apply, not In re Grand lege did attorney that an will represent not his rela- Proceeding, Jury power disqualification client. Such a longer existed at the time tionship no can undermine and legal sys- debilitate our Furthermore, investigation. by subjecting tem the criminal defense bar part argument relied on the Heuwetter governmental to the subservience of a amendment to counsel that the sixth agent. The unrestricted exercise of this stage. at the applicable power adequate justification without does F.Supp. at n. As noted See 972-973, necessary indispensable not strike us as this is earlier, pp. supra see system type adversary justice, in the of case under in an not determinative of criminal particularly signifi- consideration. when we consider the attorney-client relationship cance of the the court find rationale of We independent and the need for an bar. Sec- and, persuasive,8 Harvey appeals ond, earlier, as noted to have above, immediately is no there discussed choosing counsel of one’s defense authority contrary in this dispositive charge of constitutional di- Thus, subpoe hold circuit. we that when Thus, any infringe- potential mensions. testify to an na is issued right must only ment of this be as a last investigating client whom however, noted, resort. It should be represented, and where he has theretofore “protection [provided right] goes by the if he testi disqualified will be arbitrary further than fies, prelim- preventing no dis- should make the Government Harvey case involves a situation where We realize that has been withdrawn 9. The instant attorney and, parties that will ulti- concede the precedential both no value. See therefore has Thus, mately disqualified if we 1093, he testifies. Morchower, slip F.2d (4th Cir.1983). United States 718 disquali- presented with a in which not case are opinion) op. p. (unpublished 3 consequently "speculative” ex- fication is above, however, Harvey As noted we find the ap- opinion as to press no the standard reasoning persuasive rely on it. As for Mor- this, light the dis- plied a case. In of in such chower, only production case the that involved speculative regarding na- the sent’s statements testimony and not the of the attor- of documents attorney requiring of an of the burden ture attorney’s ney, disqualification was not and the inap- dissenting op. are testify, at 984-985 see Thus, distinguishable several is on an issue. posite. grounds. 976 added). attorney.” (emphasis of the chosen principle ap-

missal This not is for, 1072, plicable 679 here Flanagan, F.2d 1075 we have indicated ear- lier, Cir.1982), rights (3d grounds, implicated other constitutional are in rev’d on 465 1051, the instant 79 case. S.Ct. L.Ed.2d 288 U.S. Still, (1984). requirement a that distinguishable Liberatore is further showing make Government a that, ground hand, unlike the case at need of and relevance consistent with only sought non-testimonial evidence was analysis unduly not this and is burden Moreover, in that case. Liberatore relies adequate Requiring justification some. significant in part on the case of In re prevent arbitrary dismissal of an will Horowitz, (2d Cir.), 482 F.2d cert. grand protect jury’s and still denied, S.Ct. if the access to information Government L.Ed.2d 86 This is instructive inas the attorney’s demonstrate that testi can placed much as the Horowitz court on the mony but only is not relevant that there burden making pre Government the of a reasonably a need for it that cannot be met showing liminary respect of relevance with some other fashion. to choose sought. to certain of the documents See afforded one’s counsel is thus sufficient Thus, id. at 79-80. even where no consti being

protection without accorded exces rights implicated, tutional this circuit sive deference.10 per has no placing se rule the bur

den party seeking on the enforce III. subpoena. requires The standard enunciated above approach Finally, advocated bear that Government the burden of practical dissent involves diffi- enormous proving relevance need before enforc- grand culties in of jury the context inves- grand ing jury subpoena compel effect, tigation. In the dissent would re- testify grand jury quire party seeking that the investigating sug- his client. dissent subpoena prove that the information that, formulating gests standard sought unnecessary. is irrelevant and It is manner, ignored policy we “have our when, difficult to see how this can be done requiring the party challenging of oftentimes, party that will not know the grand subpoena to bear the burden of scope grand or jury investiga- nature showing that sought the information is ei- Furthermore, tion. secrecy require- privileged any legit-

ther irrelevant 6(e) impede any ments of Fed.R.Crim.P. object investigation by imate potential attempts discovery that would support jury.” at 987. Dissenting op. be made in an effort to meet the burden of position, of its relies primarily proof dissent impose. that the dissent would Liberatore, upon In re IV. Liberatore,

(2d Cir.1978). however, was a case in not which constitutional bar, In the case at the Government has thus, implicated and, distinguish- were showing made a yet, relevance. As how- from the As ever, able case at hand. need, Libera- showing there been no recognized, govern- court itself “the tore for the Government has failed to show not has no whatsoever to ment burden make a that the information is neces- preliminary showing” where sary “the com- grand jury investigation, but pelled production impli- evidence reasonably such there is no available rights.” cates no Id. at 82 source for information than attor- (staff experience suggests requiring analysis proposed argues 10. Actual bill preliminary showing impede requirement showing relevancy will "has not jury process. serious, Hearings disruption See on H.R. 94 caused Before Circuit); Immigration, Citizenship, proceedings” the Subcomm. on in the Third see also Har- 9; Kamisar, vey, International Law the House Committee on at 1012 n. Y. W. Israel, Judiciary, (1977) Cong., supra, g. 95th 1st Sess. LaFave & J. at 738 & n. impaired by Amendment will be enforce- a sufficient has ney. Until there been need, be- grand jury subpoena we duces showing of such reasonable ment of the oppressive lieve that it is unreasonable upon served of seven- tecum Accordingly, the subpoena. to enforce the (John Doe) presently years teen who the motion to denial of district court’s grand jury. him before the representing the case is remanded quash is reversed Neither the Fifth nor the Sixth Amendment with this proceedings consistent for further target applicable here. As an unindicted opinion. jury investigation, appellant grand of the Amendment to counsel has no Sixth dissenting. TIMBERS, Judge, Circuit stage. independent There is no jury investigation out grand process to counsel under the due as serious as this case arises about clause of the Fifth Amendment. Where no in the federal any that are undertaken attached, constitutional have the Su- sitting in the Eastern A courts. impose any declined preme Court has investigating the New York is District of requirement upon government prior enterprise known as of a criminal activities grand jury subpoena. its enforcement of a “family” crime organized the Colombo accepting majority’s contention Even Anthony family by of that headed a faction rights are somehow “im- that constitutional “Anthony Colombo known as the Colombo here, balancing plicated” of the interests us shows that The record before crew”. forego requires imposing that we involved investiga crew under of this the activities stringent they so will requirements the crimes of by grand jury include tion unacceptably with the interfere trafficking, murder, racketeering, narcotics constitutionally mandated task of in- jury’s extortion, interstate robbery, gambling, crimes, alleged protecting vestigating while property and other transportation of stolen concerning whom it has heard ac- persons, court, Eugene crimes. The district federal cusations, being unfairly prosecuted. from Nickerson, Judge, entered an H. District An by appellant gives motion in- denying parties agree that if Doe order Both (Richard Roe) thony criminating Colombo his client to evidence subpoena duces tecum served disqualified from grand jury, he will be Slotnick, attorney, Barry appellant’s on prosecu- representing him Doe). today va (John majority Esq. grand jury’s may result from the tion I order. dissent.1 cates that Appellant investigation. concedes protected by is not Roe) (Richard that his asserts Appellant us, privilege. urges He right to retain process and his right to due however, protect potential his future his choice under the Sixth counsel majori- regard substantially as the essential flaw in dissenting opinion, its what I This form, pre- ty's position, namely, that a originally its insistence to the present was circulated ago. showing by liminary of rele- panel time some members then, prior constitutionally required During period elapsed has since vance and need is grand jury subpoena served majority opinion somewhat. has shifted enforcement of a origi majority dropped example, has its unindicted of a on counsel for an For alleged Having specifi- due jury investigation. on an Fifth Amendment its reliance softened nal time, counsel; and, name, by for the first process amendments cations of constitutional review based replete asserts a standard of majority opinion with refer- now is 17(c) reliance rights” and asserts its "implicated Fed.R.Crim.P. on ences ap supervisory powers of a court upon target. The essence of grand jury proceedings. over federal peals majority’s original opinion remains un- dissent, to which the changed. so does this And majori- shifting position Despite majority specifically refers. my to retain the substance ty, decided I have Moreover, and their I believe that counsel dissenting opinion. Whatever original have the expect are entitled —to majority opinion by clients gloss new said —indeed they the Court ruled address to original claims which dropping certain of its its virtue Court, including con- their various version of the positions, the current untenable majority opinion claims. really departed stitutional (4 Cir.1982) (en banc) Har right to counsel of his retain [hereinafter vey\. majority places The requiring government, heavy the here re choice Harvey.2 grand jury subpoena the liance on it can enforce attorney, his to show that the served on Since, fully stated reasons more necessary for is the below, I find no sound majori- basis for the government’s the conclusion of successful decision, ty’s I would affirm the of order that Doe is the available the district court. From the majority's re- sought. of the information source so, fusal to do respectfully I emphati- but adopts requires cally a test that dissent. majority prior to enforcement a government, the ' I. subpoena on counsel for grand jury served target grand jury of a inves- an unindicted There is no constitutional basis for estab- show that “there is a need for tigation, lishing requirements new for govern- the reasonably that cannot be ment to meet in order information] to enforce [the the jury subpoena in fashion”. While this met some involved in this case. stringent the appellant as one test is not A.

proposes, inappropriate it under the cir- not compel This case does us cumstances. require Sixth Amendment does not a procedural safeguards new to establish preliminary showing for a enforcement of relationship of an whose —whether grounds, as majority on constitutional target client is an unindicted a holds, jury investigation. in the of our exercise federal The Sixth Amendment power, supervisory provides part as the court held in in pros- all criminal “[i]n (Leon Special Jury re Grand 81-1 D. ecutions, No. enjoy the accused shall (4 Cir.), Harvey), vacated ... have Assistance of Counsel for Const, and withdrawn when indicted defence.” U.S. amend. VI. The he target fugitive, became 697 F.2d Sixth Amendment to counsel “at- of the Harvey ‘nearly 2. In view massive reliance which “Since facts of make it majority places Harvey ..., in instant case on causing [to identical’ toit Morchower] relying —especially supervisory powers in on its present precise question’ 'the in [as Morchow- grand jury proceedings over in federal this Cir- ..., and since er] we have concluded that the any Harvey longer cuit—we note no Harvey pre- dissent has the better chance of precedential value even in Fourth Circuit. apply reasoning vailing, we advanced in Circuit, Subsequent Harvey, the Fourth in an unpublished opinion by Judge Murnaghan, AFFIRM." Morchower, (4 No. United States 83-1816 Cir. Slip Judge Murnaghan op. at 4-5. was also the 28, 1983), Sept. explained prece- the lack of Harvey. author of the dissent in There he stated Harvey: dential value precedential Harvey “The value of the case subpoe- "... should free to eliminated, however, majority was when a generalized preliminarily, na without judges regular the circuit active service basis, being required justify the relevance rehearing ordered en banc. See 28 U.S.C. necessity of its action.” 46(c), 35(a). FRAP Under the § established Id., (footnote omitted). at Court, practice consequence, as a any precedential With the elimination of val- panel automatically was decision vacated. Harvey, ue of the Fourth Circuit decision Furthermore, Harvey the fact that Leon D. position majority instant case had, interim, (a) (b) in the been indicted and seriously longer undermined. There no fugitive justice become a led to an order authority whatsoever which can withdrawing panel opinions. Spe- In re point upon support supervi- of its reliance (Leon Jury Harvey), cial Grand D. sory powers appeals (4th of a court over Cir.1982)." federal F.2d 112 grand jury proceedings justify requiring Slip op. explained 3. The at Court further that enforcing granting rehearing government, prior "... en banc [in Harvey presence was demonstration of the ] served counsel for unindicted question mind serious of the Court grand jury investigation, establish relevance opinion as a whole as to the emanating correctness dissenting opin- See and need. Part IV of this majority." panel from the ion, infra. concluded, Slip op. The Court indictment, charge, preliminary in hearing, time that adver- only at or after the taches ” formation, arraignment.’ Carney have been initiat- or n. proceedings sary judicial Illinois, LeFenre, 19, (2 Cir.1979), 406 21 Kirby v. 611 F.2d him.” cert. against ed denied, (1980), (1972) opinion). In 921 682, (plurality quoting Kirby 446 U.S. 688 U.S. 689; “import Illinois, into a supra, refused to 406 at see also Court v. U.S Kirby, the investigation Mohabir, 1140, an absolute con- 624 F.2d police routine v. United States historically Cir.1980).3 and ra- guarantee (2 1146-49 We have further stitutional only onset of tionally applicable that, during grand jury investiga held after at proceedings.” Id. prosecutorial target, formal tion of an unindicted the Sixth added). explained The Court (emphasis right 690 to does not at Amendment counsel Vasquez, that tach. v. 675 F.2d United States 16, (2 Cir.1982) curiam); (per 17 see also judicial pro- criminal initiation “[t]he 564, Mandujano, v. 425 U.S. United States mere formalism. ceedings is far from a dictum); (1976)(plurality opinion; in re 581 point starting sys- of our whole It is Groban, (1957) (dictum). 333 adversary justice. For it tem of adversary judicial proceedings have Since that has only is then against appellant in not been initiated prosecute, to itself committed right instant his Sixth Amendment to positions of the adverse then that attached, his counsel has not interest have solidi- government and defendant represented continuing to be that a defendant finds It is then fied. di present is not of constitutional counsel prosecutorial faced with the

himself mensions. organized society, and im- forces the intricacies of substantive mersed that, has clear The Court made It is criminal law. this procedural subpoena infr grand jury when a does not therefore, marks the

point, com- inter inge constitutionally protected prosecutions’ of the ‘criminal mencement est, prelimi to require no reason there is explicit guarantees to alone nary allowing govern showing before applicable.” Amendment are the Sixth subpoena. to United ment enforce Id. at 689-90. Dionisio, appellant’s right Sixth Amendment Since Supreme Court have followed the We attached, not there is no merit counsel has person comes under the holding that “[a] re to his contention that the Constitution the sixth and fourteenth protection of showing to be made in quires any greater from mo- right counsel amendment this order enforce proceedings are initiated judicial ment him, way of than enforce other.4 ‘whether formal right potential right chill his Sixth Amendment support of its future contention 3. greater argument given of his The of one’s choice must to retain counsel choice. counsel afforded, usually presently rights being protection it is the ma- has than that one’s chilled Mohabir, jority quotes from United States in the context of First Amendment been made majority op. supra, vague F.2d at 1149. See be so where a statute found to a more significant think the full exercise of I overbroad that it inhibit 973. Judge Feinberg's cases, complete quotation Chief from rights. First In such Amendment majority's opinion clear that the concern makes being petitioner that he is deterred from claims retain of one’s choice is counsel argument ap- existing rights. exercising begun prosecution has misplaced since no pears inapposite the constitutional where instant case: right allegedly yet chilled has not attached. begun, prosecution “[A ]fter Further, right to counsel of one’s retain at all the assistance of counsel crucial obtain right. States v. an absolute choice is not symbol stages is essential if both Cir.1979). Ostrer, (2 preserved____” reality of a fair trial are to be therefore, attorney, disqualification of one’s added, being part (Emphasis Id. omit- impairment necessarily an unconstitutional majority’s quote ted from Mohabir opinion. right. III of this See Part of one’s infra opinion). Nor will the disclosure appellant’s impair unprivileged Appellant contends that enforcement privi- statutory or common law grand jury subpoena against his will B. amendment but process also the due clause added).5 (emphasis amendment” require the Fifth Amendment Nor does fifth support As proposition, it cites showing prior to enforcement Flanagan, United States v. 679 F.2d of a served (3 Cir.1982), rev’d grounds, on other for an unindicted (1984), 104 S.Ct. 1051 investigation. The Sixth Amendment and Davis v. Stam ler, (3 Cir.1981). to assistance of counsel is “of such a char- be denied acter that it cannot without vio- Flanagan contains a statement ef principles lating those ‘fundamental of lib- fect that a defendant’s decision to select a lie at the erty justice base all particular attorney is pro afforded some ”, political institutions’ our civil and Powell by the by tection Sixth Amendment and Alabama, 45, (1932), 287 U.S. quoting v. process the due clause of the Fifth Amend Louisiana, Hebert v. ment, citing Davis v. Stamler. Without (1926), necessarily and therefore is included any Amendment, reference to the Fifth process concept of due of law. Pow- court Davis v. Stamler stated that Alabama, supra; ell v. Gideon v. Wain- right to counsel of one’s choice also “[t]he (1963). wright, 372 U.S. 335 Powell v. Ala- clause”, process derives from the due id. at Wainwright bama and Gideon v. made the 480, citing United Carey States ex rel. right applica- Sixth Amendment to counsel Rundle, (3 Cir.1969), 409 F.2d 1210 cert. through process ble to the states the due denied, (1970). 397 U.S. 946 Carey held the Fourteenth clause of Amendment. The that the Sixth and Fourteenth Amendments Supreme also Court has held that the Four- require that an accused be afforded a fair process teenth Amendment due clause opportunity reasonable to obtain coun guarantees op- a criminal defendant a fair sel of his choice. Id. at 1215. Pre portunity to obtain assistance of coun- sumably, the court in Davis v. Stamler prepare sel of his choice to and conduct his referring also was process the due defense, every but that not denial of a clause of the Fourteenth Amendment since request for a continuance in order to do so that case concerned a state criminal de arbitrary is so process. as violate due fendant, and the court cited Carey sup Ungar Sarafite, 376 U.S. 589-90 port This, however, for its statement. (1964); Fretag, Chandler v. 348 U.S. leaves United v. Flanagan with no (1954). Inadequate assistance of counsel support for proposition its the due challenged also as a violation of a process clause of the Amendment Fifth defendant’s right Sixth Amendment protects a defendant’s decision to retain counsel, applicable as made to the states particular counsel. It appear would through process the due clause of the Four- any protection right to counsel af Sullivan, teenth Amendment. Cuyler v. process forded the due clause of the (1980). While viola- superfluous Fifth Amendment is in federal right tions of an accused’s to counsel are proceedings. encompassed concept within the pro- of due cess, process the due clauses neither ex- What is cause for more serious concern pand nor contract the protec- here, however, complete is the sup- lack of provided by tion the Sixth Amendment port majority’s contention that the right to counsel. right represented by to be counsel of one’s majority, however,

The choice “arises” from express pro- holds that both the right represented by Amendment, vision of the of one’s Sixth and the choice not “arises from the process sixth Fifth Amendment due clause. lege. privilege above, protect would majority opinion, survive to 5. As stated the revised scope order,

confidential communications within its vacating the district court’s has relationship if the even were ter- dropped alleged its reliance on an Fifth Amend- Berger, minated. Weinstein & Weinstein's Evi- process right ment due to counsel. 503(c)[01], dence at 503-67 fl has do While the Court stated that not hold that the sixth amend- “[w]e right encompassed requires to counsel is ment a preliminary showing in concept process, and of due that certain hold, however, this case. We do that in right to counsel limitations on violate exercise of supervisory power our over due it has process, not indicated that grand jury proceedings federal in this separate process Fifth Amendment due circuit, preliminary showing describ- to counsel right independent clause exists appropriate protect ed is person’s counsel, Amendment the Sixth in maintaining interest a proper attorney- when the at times Sixth Amendment relationship.” client even has not attached. Yet this is Thus, Id. at 1012. the Fourth Circuit chose majority what have would us believe. rely supervisory power its reach a sup- authority cites no constitutionally required result not in that, port its if the Sixth contention Amend- Circuit, situation. Unlike the Fourth attached, ment to counsel majority today holds that a then Fifth there still exists a Amendment showing is constitutionally mandated. process right due clause to counsel of one’s so, doing attempts With no basis for it to Illinois, choice. reference Kirby to v. right create a new constitutional to counsel 682, supra, 406 U.S. fails to its bolster general language under the of the due Court, position. Kirby, In process Amendment, clause of the Fifth holding after that there was no Sixth right clearly exceeding the time frame de right to judi- Amendment counsel where no Illinois, Kirby fined in supra, v. initiated, cial proceedings had been specific provision of the Sixth Amendment (Miranda) and no right Fifth Amendment throughout history that our been where compulsory no self-in- right judi source of the to counsel.6 Such involved, was crimination stated it that cial innovation incompatible long is with open possibility would leave settled law and should not coun be “lineup unnecessarily have been so] [could tenanced. The harm judi caused such suggestive and the irreparable conducive to compounded cial innovation is further mistaken identification” as violate due justification this case since there is no for process. at 691. is nothing Id. There impose burdens the seeks to that, Kirby suggest although right no grand jury process. counsel had attached under the Sixth Amendment, or the privi- Fifth Amendment II. lege against incrimination, there might still right be a to counsel under the Fifth statutory There no or common law due process Amendment clause. privilege protecting information the grand jury seeks to have disclosed Nor will Harvey, supra, 676 F.2d subpoena requires case. The ap- Doe to support proposition. such Harvey, like pear produce before the and instant involved a any records of or property monies transfer- served on counsel for an grant unindicted him, red to or to of his associates on jury target. The court in Harvey found behalf, for, by, twenty-one or named that in maintaining prop- interests “[t]he government er individuals. The states that it attorney-client relationship and protect- ing regarding the confidences of seeks the information fees and relationship that identity (1) money similar to the sixth client as right amendment evidence property effective assistance of de- counsel and funda- have been system (2) mental jus- activity, to our adversarial rived from criminal a crimi- and stated, however, enterprise tice.” appellant’s position Id. at It nal part interrogation, 6. A second to counsel exists as held v. individuals for Miranda Arizona, (1966), privilege Fifth Amendment self-incrimi- 384 U.S. 469-73 specifically separate nation. This to counsel exists the Sixth Amendment Illinois, protect privilege Kirby supra, Fifth Amendment 406 U.S. at 689. counsel. III. enterprise. The head of appellant, as evidence that claims that adopting the policy There is no basis for ar- “benefactor”, for or otherwise paid govern- majority’s requirement mem- legal representation ranged for showing rele- make a ment enterprise who were this criminal bers of need in to enforce a vancy and order illegal during the course of apprehended whose served on whether to determine activity needed is an unindicted client indicted for his activi- appellant should jury investigation. enterprise. of a criminal ties as head that, absent consistently have held We A. circumstances, identity client special part guarantees The Fifth Amendment privileged. E.g., are not fee information person shall be held answer that “[n]o (2 Cir.1984); F.2d Shargel, re crime, capital, for a or otherwise infamous States, 306 F.2d v. United Colton presentment or indictment of a unless on a Cir.1962), denied, (2 371 U.S. cert. Const, Jury____” amend. V. Grand Pape, (1963); States v. integral part “The is an of our denied, (2 Cir.), cert. heritage brought which was privilege to (1944). “A client has a country the common law.” to this with prevent any other and to refuse to disclose supra, 425 Mandujano, United States disclosing commu confidential person from Historically, it has been U.S. at 571. purpose of facilitat made for the nications guarantee as “a basic of individual viewed legal professional ser ing rendition of liberty”, to function as a “continues client, (1) or himself between vices charges.” to reckless or unfounded barrier lawyer his or his representative and jury proceedings serve not Id. Grand Supreme representative____” lawyer’s determining investigative function of Lawyer-Client Privi Court Standard 503— returned, should whether an indictment be lege. privileged, the communication To be securing protective function of but also the confidential, must neces and it be must be “against arbitrary oppressive or persons legal sary informed advice to obtain action, by insuring that serious criminal States, 425 U.S. v. client. Fisher United brought only upon the accusations will be (1976). consultation with an While representative judgment of a considered fee, may attorney, payment and of a be acting oath and un- body of citizens under advice, legal their dis necessary to obtain guidance.” judicial der instruction and Id. does not inhibit the communication closure grand investigative powers of the The necessary for an to act effective may carry it out jury are broad so that rea expeditiously. For this ly, justly, and determining the ex- adequately its task of son, special circumstances not absent returning activity of criminal and istence here, of fee information present disclosure Branzburg indictments. v. well-founded privileged identity is not even and client grand Hayes, the client. In though might it incriminate to witnesses is authorized at 63. Fee Shargel, supra, 742 F.2d re evidence. require production and to sought may be as evidence “Although powers may have unexplained wealth which been subject to the not unlimited and are activity, informa derived from criminal and judge, longstanding supervision paid by either tion that fees were public ‘the ... has a principle that by persons may third be clients or evidence,’ except for every man’s identity to of a benefactor. to determine by persons a constitu- rule, specif protected those general at 63-64. As a Id. common-law, privi- tional, statutory is not ically in this such information grand particularly applicable lege, is by attorney- protected from disclosure jury proceedings.” privilege. client omitted). (citations Every per- approach proper performance even to Id. at 688 govern- jurisdiction mission, son within of its constitutional it must be appear give obligation has an pursue ment free to investigations its unhin- grand jury. his evidence before the Unit- dered external influence or supervi- Dionisio, supra, 410 v. U.S. at ed States long sion so as it does not trench 9-10. legitimate rights any witness called before it.” grand investigation fully jury’s

“A is not every carried out until available clue has Dionisio, supra, United States v. run been down and all witnesses examined (citations omitted). Where, every proper find if a way crime has here, appellant valid raises no constitution- committed____” United been States claim, nor statutory privilege, al “there is Stone, (2 Cir.1970). It is no more reason require protect- part jury’s function of showing ... than would there be in the ing persons against arbitrary or unfair ac- who, of any despite case witness the lack persons suspected to call tion before statutory constitutional or privilege, activity, suspected “persons question declined answer a or comply may no misconduct but be able to who grand jury request.” with a Id. at 16. relating links in a evidence provide chain of grand jury proceed- Such interference with others”. to criminal conduct of ings justified is not by the Constitution or supra, Mandujano, 425 U.S. at Further, Supreme law. case Court has appropriate “It is entirely 573. —indeed noted with disapproval delays caused imperative individuals summon who —to by requiring to make a may shadowy pre- be able to illuminate need, preliminary showing of and unavaila- crime.” corruption cincts Id. bility sources, of other before it can en- jury subpoena. force Id. at 17 B. n. majority’s require creation of a new Even where constitutional are in- complied govern ment to be with volved, Court been reluc- ment before it enforce a exemptions tant create constitutional justified only can if the infor duty appear protected by mation a constitu information, furnish and relevant or to re- tional, law, statutory privilege.7 common or quire preliminary showings to be made be- Branzburg supra, Hayes, See v. persons claiming infringement fore an 688. at rights compelled their constitutional can be “Any holding grand that would saddle a testify. See, e.g., Branzburg Hayes, jury with and preliminary minitrials supra, 408 U.S. at 708. showings assuredly impede would its in- vestigation Branzburg, Supreme recog- Court public’s and in- frustrate gathering qualified nized that news expeditious terest in the for fair and admin- protection, istration First Amendment but grand laws. The it held reporters jury may obligated not were always serve its historic nevertheless protective appear grand jury role as a standing bulwark before the as other solidly ordinary questions between the citizen do and regarding and citizens answer an prosecutor, including overzealous if investigation, but it is a criminal informa- course, may, attorney grand A district court on an motion for an unindicted subpoenaed party, of a fy majority decide to or modi- since believes that constitu- Thus, particular subpoena compliance implicated. where tional create it seeks to oppressive. requirements would be unreasonable or Fed.R. new constitutional under 17(c). guise reviewing Crim.P. We such decisions district review court’s exer- grand to trarily supervising determine whether acted cise of its the court so arbi- discretion in proceedings. utterly as to exceed its discretion. The This me as strikes untena- squarely long holds that the district court abused its ble. It flies face discretion settled by determining quash subpoena not to served law of the and of this Court Court. 681-82, obligation interests demonstrates in confidence. Id.

tion received appear appellant’s attorney to stated that Court 708-09. The outweighs appel testify law enforcement effective “[f]air right. lant’s asserted per- security for the providing aimed at choice is not retain counsel of one’s of the individual is a property son and absolute, give way re “must when government, function of fundamental proper by the fair and administra quired important, jury plays an Ostrer, justice.” tion of United States in this constitutionally mandated role (2 Cir.1979). burden us, records now before process. On rights by the imposed on Sixth Amendment holding that the no basis for perceive we for disqualification of counsel potential and in in law enforcement interest public jury targets speculative.8 It is grand jury proceed- ensuring effective attorney pos an only in those cases where the conse- override ings is insufficient information relevant sesses uncertain, burden on news quential, but poten that a would jury’s task from in- is said to result gathering that right to re tially interfere with a client’s citizens, like other reporters, sisting that particular attorney at a subse tain that put questions respond relevant quent ensuing trial. As we stated In re course of a valid them in the 64, creating Shargel, supra, 742 F.2d at investigation criminal trial. or statutory privilege for even a testimonial no re- itself involves This conclusion identity information and client “would fee newspapers may publish what straint on unnecessary temp considerable create but type quality of information or on the lawyers to use as conduits of infor tations acquire, nor does reporters may seek necessary mation or of commodities of confidential the vast bulk it threaten criminal schemes or as launderers of mon reporters and their relationships between accept ey.” attorney may Since juries address them- sources. Grand legal compensation for his services from crimes the issues of whether selves to other than his client without full someone committed committed and who have been implications of the rela disclosure them- Only where news sources them. payor tionship, a scenario which possess implicated in crime or selves are of the members of a crimi the benefactor grand jury’s information relevant to the enterprise, payor later is indicted nal they reporter or the be con- task need activities, his and the is called grand jury subpoenas.” cerned about trial, causing thus upon to be a witness at Id. at 690-91. counsel, disqualification is some his trial reasoning equally be thing The same would can disclosed at the time the applicable appellant’s accepting payment. if Sixth Amend- here discusses See Responsibility, of Professional ment to retain counsel of choice Model Code 5-107, 5-21, light 5-22.9 In of the balancing of the asserted DR EC had attached. A right attorney if his had heeded the Amendment to sel of choice 8. The burden on the Sixth warning is even more retain counsel of one's choice of the Model Code of Professional Re- speculative of a against accepting payment where the sponsibility unindicted, right investigation 5-107(A), since the at- is party. clients' fees from a third DR indicted; Once taches if and when he is 5-21, Accepting payment clients’ EC 5-22. attaches, hearing on whether pre-trial right the subject attorney party may an fees from a third required attorney's testimony at trial an will be influence, particularly to undesirable outside right protects counsel of the accused's retain attorney representing in clients where the This, arbitrary his choice interference. party is the head matters and the third criminal recognizes, is the extent as enterprise which the clients are criminal right protection constitutional afforded situation, ques- an ethical members. In such retain counsel of one’s choice. loyalties attorney’s tion arises whether Judd, payor. See or the with the client Conflicts noteworthy appellant probably would It Notes, Judge's 44 Fordham Trial Interest —A impairment complaining of his not be on the 1099-1101, n. 41 L.Rev. right potential retain coun- Sixth Amendment privilege inquiré government undesirable effects a testimonial whether should be bar, have on defense prevented calling would the criminal from the attorney of one speculative and the nature of burden of the defendants as a in witness order to requiring testify, on the an avoid the ethical conflict of interest necessi- right Sixth Amendment to retain counsel tating disqualification. Rather, we in- right by no one’s choice—a which is means structed the district court to determine argue plausible is not absolute—it attorney’s whether the testimony was ad- right outweighs the asserted constitutional unprivileged, missible as nonhearsay, and if importance operation of the effective so, whether the accused’s constitutional justice an instrument right to retain counsel of his choice should and effective law enforcement. public’s override the in enforcing interest Disciplinary 5-102(A) requires Rule disqualification involuntary While of an attorney-witness attorney interferes with an accused’s con withdraw as trial counsel for his client. stitutional retain counsel of his As Cunningham, choice, power duty Circuit, courts have the to and numerous other cases in this disqualify public clear, counsel where the interest make to retain counsel of maintaining integrity judicial in absolute; one’s choice it may be system outweighs the accused’s constitu constitutionally impaired where the inter- right. tional Criminal defendants have judicial system ests of the override the constitutionally required been to retain oth interests of the accused. preserve er counsel when “the need to highest professional ethical standards of C. responsibility” outweighs the accused’s Appellant’s complained counsel has bit- right, constitutional United States v. Cun terly government’s about refusal (2 Cir.1982), ningham, 672 F.2d accept proffer Doe’s offer of an informal denied, (1984), cert. 104 S.Ct. 2154 appear- information lieu of an inability “where the of retained counsel to ance before jury. Based on the gives promise delay serve of unreasonable by appellant’s statements made counsel in completing or inconvenience in the trial”. affidavits, hearing at the on the motion to Cicale, quash, us, argument and at oral before denied, Cir.1982), (2 cert. however, appears appellant’s to be con- (1983), Bentvena, quoting United States v. proffer tention that even an informal would (2 Cir.1963). 319 F.2d rights. violate his asserted constitutional Cunningham, United States v. su- 22, 1984, hearing On October at the pra, government moved Doe’s subpoena, motion to attorneys disqual- to have the defendants’ questioned district court whether Doe’s trial ified as counsel. The district court furnishing form, any the information in applied balancing test to determine testimony affidavit or the accuseds’ whether jury, disqualification represented by would not lead to his their retained counsel (who outweighed event. Doe’s was the interests of the also represented public preserving appellant hearing) and the legal profes- agreed the ethical standards of the that the form make no differ- would Court, Cunningham, disqualification, sion. Our did not ence on the issue of but enterprise enterprise trading regarding head of a can avoid potential disqualification enterprise leniency. threat the of his the The restraint can attorney by providing directly attorney the members of his enter- come the either where —as they may guilty allowing prise pleads with funds so that retain counsel for the defendant without course, directly. arrangement cooperating govern- Of such an does him to consider with the give enterprise indirectly presence the head of an same ment —or where —as attorney simply he would have as a a reminder control "benefactor”. Often serves as presence by of counsel retained a benefactor defendant that his benefactor will hot be pleased government witness. acts to restrain the members of the criminal if he becomes a that, explained any protection before information was tional rela- manner, provided it was his clients’ tionship potential disqualification government required desire to to have then, provided, is information, why demonstrate it needed the least, very protection should be source, why why Doe needed to be the asserted, tailored to the interest and the government’s in- present sources were placed burden should be where it tradition- adequate provide to information ally, rationally, placed: has been on the sought. again suggested When the court party seeking subpoena. disqualification was inevitable no mat- Adequate protection of Sixth Amend- government ter from what source the ob- ment would be afforded our deci- information, tained the counsel indicated sion grand jury subpoenas to allow disqualification was not as certain quashed they if are shown to bear no con- as it if would be Doe were a any legitimate relevance object ceivable witness. investigation by grand jury. In See repeated arguments Counsel these same Liberatore, (2 re Cir. appeal and in his affi- October 1978). If the information is rele- accompanying appellant’s davit motion for vant, then the should not be affidavit, expedited appeal. an In that denied its traditional access to such infor- appellant counsel for and Doe stated that calling witnesses, before it those overriding was JOHN DOE’S con- mation— “[i]t who are believed to have relevant informa- any appearance tention that since on his tion, give testimony. their If part grand jury, as well as even a suggested proffer specific jury target informal subsequently indicted and grand jury appear- information short of a prosecuted, attorney given and his has rele- ance, result in disqua- would his ultimate grand jury, raising vant information to the lification, chilling it would create a effect , possibility may that he be called as a on his clients’ Due Process and Sixth trial, witness at then the trial court rights by effectively Amendment de- balance the defendant’s Sixth Amendment stroying long-term highly valued at- attorney to retain that as trial coun- torney-client relationships. It was public's sel interest in enforc- therefore, urged, the Government ing legal pro- the ethical standards of the required should showing to make a fession. See United v. Cunning- outweighing compelling need before ham, supra, 672 F.2d 1064. Concerns such a could be enforced.” prosecutorial about abuse of appellant’s contention, therefore, It subpoenas ignore subpoenas the fact that problem exists no matter in what subject are being quashed, In re Libera- attorney compelled his provide form tore, supra, grand juries subject evidence, government and that judicial control. Courts will not allow compelling must show a need it can grand juries investiga- to conduct faith bad require provide his any unprivi- tions, subpoenas solely or issue leged regarding their relation- purpose disrupting target’s relation- ship. ship attorney. Branzburg with Cf. Hayes, supra, 408 U.S. at 707-08. D. majority relationship holds that the response appellant’s contentions, great- between client and deserves today’s decision re- protection er than it has received quired showing to make a past. protection While such is not constitu- of “reasonable need” before it can enforce required, appellate tionally some courts subpoena against appellant’s attorney. supervi- protection granted pursuant have to their Additional of Sixth Amendment rights, however, necessary. See, is not sory power. e.g., Harvey, supra, If addi- 1012.10 F.2d at Whatever the asserted will be an ba issue matter no from what requiring for preliminary showing, sis a source the information originally was ob- majority majority’s concern, is inconceivable to me that the tained. The therefore, ignored policy requiring should have our of should not have been limited to whether the party challenging the sub the is the of source the informa- tion, poena showing bear the burden of that but should have addressed whether sought privileged grand information is either jury should be allowed to consid- legitimate object any irrelevant of er the any information from source. Such investigation By by grand jury. requir deference attorney-client to the relationship ing government clearly to bear the burden of inappropriate would be as it fails proving relevance and need before it public can reflect interest of the in the grand enforce jury subpoena a served on functioning grand efficient of jury. A grand jury target, counsel for the the ma appropriate more test for all concerned jority adopts preliminary of require same kind would party be to seeking to showing Supreme of which the Court has subpoena, a like the one at issue disapproved causing here, as delays undesirable sought show that the information See grand jury investigations.11 in United is either irrelevant to any legitimate object Dionisio, supra, States v. investigation at 16- of jury, or that (no & n. in may information be obtained from an- volved); Branzburg Hayes, supra, 408 other source that would avoid the risk of (constitutional rights disqualification U.S. at 701-08 in appellant’s of attorney. volved). Further, fashioning protec its This reasoning was the line of followed requirements, majority tive has failed the district court the instant case at the protects to set forth a test that hearing the interest on quash. the motion to I would sought protected. that, if protection hold additional relationship required, this majority’s The requirement test would balance the interest both government demonstrate a need parties fairly adequately. sought, information and the reasonable unavailability of other sources for the in- go. Further than this we should not The formation, adequately protect will not ap- right to retain one’s choice is not pellant’s interest. If the information is yield public’s absolute and must in- relevant, and the obtains it and terest in the operation effective trial, disqualification Where, here, to use it grand jury. determines at Sixth Amend- supervisory power Jury Proceedings (Schofield), 10. We have our held that impose (3 denied, Cir.), over the district courts us to (1975). authorizes cert. 421 U.S. 1015 prosecutors on sanctions age uniformity to encour Circuit, however, require Third does not a show practice within a district. ing sought cannot be ob Jacobs, (2 United States v. 547 F.2d 772 Cir. sources, showing tained from other a the Su 1976), dismissed, (1978). U.S. 31 cert. preme disapproved impeding Court has of as authority proce appellate courts to establish grand jury investigations frustrating "the rules, courts, regulating dural for district public’s expeditious interest the fair and ad however, grand jury subpoenas, enforcement of ministration of the criminal laws." United Beale, questioned. severely has been Reconsid Dionisio, supra, States v. 410 U.S. at 17 & n.16. ering Supervisory Power in Criminal Cases: Con majority’s Whatever said of the val- Authority Statutory stitutional and on Limits turning iant effort to rationalize head the its Courts, the Federal 84 Columbia L.Rev. challeng- requiring party normal burden of 1458-62, ing grand jury subpoena bear the burden majority "[ajctual experience 11. The states that (see proving majority op. its III of claim Part suggests showing requiring that impede newly the cur- Part introduced 976—a process.” will not See opinion), majority rent version of the the fact op. majority at 976 n. 10. The refers to through concept comes loud and clear study requirement Third Circuit’s support finds no whatsoever law the showing by sought by affidavit that the items or of Court the Second investigation, prop relevant to its Circuit. erly jurisdiction, its pri within and not marily purpose. for another See In re Grand however, even right, This attached, trial. yet client rights have not merit no more attached, guaranteed attach, imposition of additional it has once never arbitrary of the government prevention requirements for the than protection tests and attorney. chosen prior to enforcement an accused’s to meet dismissal unaccept- Sec- only interfere subpoena will court within jury district important An of determin- grand jury’s opinion, task ably in the Circuit, considered in a well ond re- should be an indictment ing whether Tecum Duces Subpoena Jury re Grand charges reck- were (Siméis), turned or whether 2, 1985 January Dated brought. unjustifiably lessly and on other rev’d (S.D.N.Y.1985), F.Supp. 27,1985), (2 June Cir. No. 85-6066 grounds, IV. contention untenable recently rejected 17(c) Rules of Crimi the Federal Rule of an disqualification threat gives the district court nal Procedure quash a it either compelled attorney modify a quash or power to require subpoena or similar unreason would be compliance if a make government re scope The of our oppressive. able or sub- of the to enforcement showing prior limited court’s decision is a district view of 16, the n. at 851 especially, id. poena. See it acted so of whether to a determination Subpoena Jury “In Re Grand reference an abuse of its arbitrarily as to constitute (2d Doe, No. Upon John Served The the circumstances. under discretion 1984).” That filed Oct. appeal Cir. that, majority has failed to demonstrate Judge Chief Former case. the instant admittedly has government where striking is a opinion Siméis Edelstein’s relevance, an showing of it is abuse made a result that will mischief illustration deny a a district court to discretion for opinion majority today’s until Circuit in this subpoena served a motion emphati- promptly case instant attorney an unindicted cally corrected. investigation without first re grand jury that the quiring government to show today seeks to create an majority The sought from the was information un- protection for unprecedented level of investigation and that no necessary to the in the hands of an information privileged reasonably source exists for available in- identity and fee attorney. client Once majority’s The concern that information.12 to be relevant have been shown formation po target’s future purportedly is admittedly investigation, as ato counsel of his choice. right tential to retain here, safe- shown additional have been “implicated” since This is held to be protects from guarding of that disqualified as target’s will be we indicted, very fee structures disclosure the client is trial counsel if if in- discourage seek to prosecute, decides to should —those if wittingly or attorney, whether attorney is volve called as a witness majority majority op. 12. relies on the First Circuit cases. See Court ence” between the two significant Appeals’ subpoenas refusal to hold that a at 975. It is also district court granting prejudice govern- quashed its discretion in abused motion to were without quash subpoenas upon attorneys served for un- ment’s to renew them at a more suitable Matters, targets Jury supra. indicted of a federal investi- time. In re Grand I would gation, "unwilling The court stated that it was further note that the First Circuit case and the say significantly that the district court exceeded its discre- instant case also differ in the defer- finding timing subpoenas reviewing courts to a district tion ence shown given inappropriate, pendency compliance of the state evaluation of whether with court's proceedings subpoenaed oppressive in which the would be unreasonable or attorneys serving it. the First Circuit were as defense counsel.” In under the facts before As noted, Matters, (1 Jury Appeals re Grand Cir. Court of the determination of 1984) original). grand jury’s right unprivileged (emphasis evi- con- when the subpoenaed outweighs defense bar cedes that the fact that the attor- dence neys serving one that its clients not to be disturbed is in the First Circuit case were related, particular case as pending on the facts of the defense counsel in state crimi- turns "significant proceedings the district court. Id. nal is a factual differ- evaluated not, conspiracy legal in criminal representation fringe is a benefit for the MEIRI, Miriam Plaintiff-Appellant, conspiracy. If members the infor-

mation is shown to be irrelevant to the grand jury’s investigation, DACON, Roger Woods, Claudius Mary- Monteodorisio, quashed. If the information is Stanley anne McKin- relevant, target’s potential right future ley, Adele Immigration Stern and the choice, to retain counsel of his will Service, and Naturalization Defend- indicted, attach if and when he is will be ants-Appellees. adequately protected by pre-trial hearing No. Docket 84-6337. to determine government whether the in- tends to call the aas witness at United States Court of Appeals, trial, and whether the accused’s out- Second Circuit. weighs the govern- various interests of the public. appropriate ment and the Argued time Feb. 1985. conflicting to balance such interests is af- April Decided ter the constitutional has attached disqualification specula- is more than a dependent indictment, tive threat a deci- prosecute,

sion to and a decision to call the

attorney as a witness trial. my view, crystal it is clear that the

majority utterly failed to show that the

district court arbitrarily acted so as to that,

abuse its discretion in determining circumstances,

under these requiring an target’s attorney

unindicted to disclose rel-

evant, unprivileged information would not oppressive.

be unreasonable or It strikes that,

me guise under the reviewing

district discretion, court’s exercise of its

the majority reality attempting to cre-

ate a new requirement constitutional

met whenever it seeks

to enforce a jury subpoena served on representing an unindicted tar-

get jury investigation. Since no to retain counsel of

one’s choice attaches while the

grand jury investigation remains unindict-

ed, I join decline to import-

ing concept in the administration of the totally foreign law law United States Court and of

this Circuit.

I would affirm the district court’s order

denying Doe’s motion

jury subpoena duces tecum. From the ma-

jority’s so, refusal to respectfully do I but

emphatically dissent.

Case Details

Case Name: In Re Grand Jury Subpoena Served Upon John Doe, Esq., Richard Roe, Intervenor-Appellant v. United States

Court Name: Court of Appeals for the Second Circuit

Date Published: Jul 16, 1985

Citation: 759 F.2d 968

Docket Number: 638, Docket 84-6319

Court Abbreviation: 2d Cir.