SANCTION AND APPEAL FOR CONTEMPT
Refusal to comply with a court order to testify pursuant to a grand jury subpoena may result in an order of confinement under Title 28 U.S.C. § 1826(a). In the event of such confinement, the statute requires an expedited appeal that must be heard within 30 days of filing of the notice of appeal. However, where the “contemnor” remains at liberty during pendency of his or her appeal, this expedited procedure is not applicable.
In re Sealed Case, 829 F.2d 189 (D.C. Cir. 1987);
In re Witness Before Special October Grand Jury, 722 F.2d 349, 353 (7th Cir. 1983); In re Grand Jury Proceedings Re: Larson, 785 F.2d 629, 631 n.4 (8th Cir. 1986); In re Weiss, 703 F.2d 653, 660 n.6 (2d Cir. 1983).
REFUSAL TO COMPLY
Under limited circumstances, a witness may refuse to comply without suffering contempt where “compliance could cause irreparable injury, because appellate courts cannot always ‘unring the bell’ once the information has been released.”
Maness v. Meyers, 419 U.S. 449, 460 (1975);
Gelbard v. U.S., 408 U.S. 41 (1972);
In re Grand Jury Proceedings (McCoy), 601 F.2d 162, 169 (5th Cir. 1979) (stating, “if an order ‘requires an irreversible and permanent surrender of a constitutional right, it cannot be enforced by the contempt power”).
CONTEMPT POWER LIMITED
The First Circuit has held that a federal district court’s contempt power to levy daily fines against non-cooperative witnesses continues no longer than the end of the grand jury’s term. In re Grand Jury Proceedings (Caucus Distributors, Inc.), 871 F.2d 156 (1st Cir. 1989). The court reasoned that since such a rule already existed for incarceration under 28 U.S.C.
- 1826(a) (2), practical considerations mandated the same rule for fines. In re Grand Jury Proceedings, 871 F.2d 156 (1st Cir. 1989) (holding grand jury’s work, and therefore, the district court’s coercive power to enable the grand jury to do its work, ends with life of grand jury). The “civil fine meter,” however, can begin anew with the beginning of a successor grand jury’s term. In re Grand Jury Proceedings, 871 F.2d 156 (1st Cir. 1989).
ENTITLED TO “ONE BITE” THEORY
A witness should be entitled to have the court decide the applicability of the claimed privilege and an opportunity to answer if same is held inapplicable.
U.S. Ex Rel Berry v. Monahan, 681 F. Supp. 490, 498 (N.D. Ill. 1988) (stating that if a witness invokes his Fifth Amendment privilege against self-incrimination, the trial court must first rule the witness’ Fifth Amendment privilege inapplicable and afford the witness another opportunity to answer, before holding the witness in contempt).
MOTION TO INTERVENE
A non-witness should be allowed to intervene where the production of documents or testimony by the witness would substantially affect the non-witnesses’ ability to assert his privilege as to the materials or matters sought. FED. R. Civ. PRO. Rule 24(a) allows intervention “when (s)he claims an interest relating to the property or transaction and (s)he is so situated that the disposition of the action may as a practical matter impair or impede his [or her] ability to protect the interest, unless the [individual’s] interest is adequately represented by existing parties”.
Consequently, a non-witness should be allowed to intervene where the production of documents or testimony by the witness would substantially affect the non-witness’ ability to assert privilege as to the materials or matters sought.
Perlman v. U.S., 247 U.S. 7, 13 (1918);
U.S. v. Cuthbertson, 651 F.2d 189, 193-94 (3d Cir. 1981);
U.S. v. R.M.I. Co., 599 F.2d 1183, 1186-87 (3d Cir. 1979);
Gravel v. U.S., 408 U.S. 606, 608 n.1 (1972);
In re Grand Jury Investigation (Intervenor A), 587 F.2d 589 (3d Cir. 1978);
In re Grand Jury Proceedings (Fine), 641 F.2d 199, 201-02 (5th Cir. 1981);
In re Grand Jury Investigation of Ocean Transportation, 604 F.2d 672, 673-74 (D.C. Cir.), cert. denied, 444 U.S. 915 (1979);
In re Katz, 623 F.2d 122 (2nd Cir. 1980);
In re Grand Jury Proceeding (Freeman), 708 F.2d 1571 (11th Cir. 1983).
“In Perlman v. United States, 247 U.S. 7 (1918), the Court held that the owner of exhibits could intervene in a criminal grand jury Proceeding to object to their disclosure on a ground of privilege, even when the exhibits were in the possession of a third party. Moreover, the Court held that the order denying intervention and privilege was collaterally final for purposes of appeal.” See U.S. v. R.M.I., 599 F.2d 1183, 1186 (3d Cir. 1979).
Accordingly, legislators have been held to have the right to intervene where their legislative assistants have been subpoenaed.
Gravel v. U.S., 408 U.S. 606 (1972);
In re Grand Jury Proceedings, 563 F.2d 577 (3d Cir. 1977); or Clerks of their office or branch;
In re Grand Jury Investigation (Eilberg), 587 F.2d 589 (3d Cir. 1978).
See also U.S. v. Doe (Ellsberg), 455 F.2d 1270 (1st Cir. 1972);
Application of Caldwell, 311 F. Supp. 358 (N.D. Cal. 1970), rev.’d on other grounds, 434 F.2d 1081 (9th Cir. 1970).
Likewise, where the attorney-client privilege is at stake, courts have uniformly permitted the intervener/client to step in and protect his attorney-client relationship since while it is the attorney’s obligation to do so unless the privilege is waived, it is in fact the client’s privilege.
In re Grand Jury Proceedings (Fine), 641 F.2d 199, 201-2 (5th Cir. 1981);
In re Grand Jury Proceedings (Katz), 623 F.2d 122 (2d Cir. 1980);
In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798 (3d Cir. 1979);
In re Grand Jury Proceedings (Freeman), 708 F.2d 1571, 1574-75 (11th Cir. 1983). Clients have also been allowed to intervene to protect the “work-product privilege”.
In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 801-02 (3d Cir. 1979);
Appeal of Hughes, 633 F.2d 282, 285-86 (3d Cir. 1980);
In re Grand Jury Proceedings (John Doe), 575 F. Supp. 197 (N.D. Ohio, 1983). Similarly, intervention by third parties has been be allowed to assert and protect the following:
The rights of an employer of a subpoenaed witness, In re Grand Jury (Schmidt), 619 F.2d 1022 (3d Cir. 1980), the “adverse spousal privilege”, In re Grand Jury Matter, 673 F.2d 688, 692 (3d Cir. 1982),”News reporter’s privilege”, U.S. v. Cuthbertson, 651 F.2d 189, 193 (3d Cir. 1981), corporation’s confidential records, U.S. v. R.M.I., 599 F.2d 1183,
1186-7 (3d Cir. 1979), State v. Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir. 1977), and grand jury transcripts, U.S. v. Armco Steel Co., 458 F.Supp. 784, 788 (W.D. Mo. 1978),
U.S. v Feeney, 641 F.2d 821, 824 (10th Cir. 1981).
“We have held that a third party may intervene ‘to challenge production of subpoenaed documents on the ground of privilege and may appeal from an order granting less protection than that claimed’.” U.S. v. Cuthbertson, 651 F.2d 189, 193 (3d Cir. 1981).
Intervention has also been permitted to allow third parties to assert their Fifth Amendment claims with respect to subpoenaed documents and testimony.
U.S. v. Jones, 630 F.2d 1073, 1076 (5th Cir. 1980);
In re Grand Jury (Kent), 646 F.2d 963 (5th Cir. 1981) (by implication);
In re Grand Jury Subpoena Duces Tecum, 342 F. Supp. 709, 710 (D. Md. 1972) (combining with attorney-client privilege);
Couch v. U.S., 409 U.S. 322, 327 (1973);
Perlman v. U.S., 247 U.S. 7, 12 (1918).
The problem is that the Intervener has a “more direct interest in preventing the compelled production of the records sought by the grand jury than [the individual] to whom the subpoena was directed”.
In re Grand Jury Proceedings (Fine), 641 F.2d at 202 (5th Cir. 1981);
Perlman v. U.S., 247 U.S. 7 (1918).
See also In re Grand Jury Subpoena (Kent), 646 F.2d 963, 968-69 (5th Cir. 1981).
The subpoenaed party, to avoid contempt, may choose to violate the privilege and provide the information, thereby depriving the real party in interest of a protected right, or any opportunity to have judicial review of his asserted privilege. It “…is unlikely that a third party, even an employee, would risk a contempt citation in order to provide …immediate review” of another’s privilege.
In re Grand Jury (Schmidt), 619 F.2d 1022, 1024-25 (3d Cir. 1980).
Courts have regularly recognized the implicit fairness in allowing intervention in such situations:
In re Grand Jury Proceedings (Subpoena Duces Tecum “A”), 563 F.2d 577 (3d Cir. 1977).
“Reasoning pragmatically …a witness will not usually undergo the penalties of contempt in order to preserve someone else’s privilege”.
However, the Fifth Circuit has held that a “target” of a grand jury investigation is not entitled to notification that subpoenas have been issued to third parties in order that the “target” might intervene to protect his or her interest.
Securities and Exchange Commission v. O’Brien, 467 U.S. 735, 104 S. Ct. 2720, 81 L.Ed.2d 615 (1984).
INTERVENOR HAS RIGHT TO INTERLOCUTORY APPEAL
The intervening client is entitled to appeal an order directing his attorney to testify prior to
requiring the attorney’s testimony or holding him in contempt:
In re Grand Jury Proceedings in Matter in Fine, 641 F.2d 199, 201 (5th Cir. 1981).
“Although we cannot say that attorneys in general are more or less likely to submit to a contempt citation rather than violate a client’s confidence, we can say without reservation that some significant number of client-intervenors might find themselves denied all meaningful appeal by attorneys unwilling to make such a sacrifice. That serious consequence is enough to justify a holding that a client-intervenor may appeal an order compelling testimony from the client’s attorney…. If the price of protecting the right of appeal of client-intervenors is an occasional frivolous appeal for the sake of delay, we will process such appeals with all the expediency their posture merits. The issues of fact and law related to attorney-client privilege are rarely complex and may be disposed of without oral argument in nearly all cases.”
In re Grand Jury Proceedings in Matter of Freeman, 708 F.2d 1571, 1575 (11th Cir. 1983).
“All that is required, after the attorney-witness or the client-intervenor pleads the existence of an attorney-client privilege, is a reasonable opportunity to be heard and prompt appellate review if the court orders the attorney to testify.”
In re Grand Jury Proceedings, 563 F.2d 577, 580 (3d Cir. 1977);
In re Grand Jury Proceedings (Clinton Manges), 745 F.2d 1250, 1251 (9th Cir. 1984).
Interestingly, the intervenor’s interlocutory appeal has been held to be a civil appeal “governed by the …60 day notice requirement of FED. R. APP. PRO. 4(2)”, rather than the 10 day requirement for criminal appeals under Rule 4(b), with its accelerated consideration for incarcerated witnesses.
But see U.S. v. Larouche Campaign, 829 F.2d 250 (1st Cir. 1987) (noting immediate appeal not permitted when abuses in grand jury process were such that post conviction relief was probably not foreclosed).
“CONTENT” VS. “ACT OF PRODUCTION” ANALYSIS TO SUBPOENAS DUCES TECUM
There has been a noticeable shift in historical Fifth Amendment analysis concerning the “content oriented” inquiry of Boyd v. U.S. in Boyd v. U.S., 116 U.S. 616 (1886) (the Court focused upon whether the subpoenaed papers were “private” or “personal” in nature. And today, the Court questions whether ordering the individual to produce the documents amounts to a compelled testimonial act).
In re Grand Jury Subpoenas Duces Tecum dated June 13, 1983, 722 F.2d 981, 984-86
(2d Cir. 1983);
In re Kave, 760 F.2d 343 (1st Cir. 1985).
Recognizing this shift in emphasis some courts had rejected the Government’s argument that the “act of production doctrine” does not apply to the compelled production of corporate records.
“The district court [chose] to accept the government’s position that the Fisher act of production doctrine simply does not apply to corporate records. We believe that the district court erred in rejecting this contention out of hand solely on the ground that corporate documents were demanded by the subpoena. Under the Fisher standard is not the potential incriminating nature and contents of the documents subpoenaed but whether their mere production would itself tend to incriminate the possessor.” In re Grand Jury Subpoena
Duces Tecum Dated June 13, 1983, 722 F.2d 981, 986 (2d Cir. 1983).
See also In re Grand Jury Matters, 745 F.2d 834 (4th Cir. 1984) (applying “act of production” doctrine to a professional corporation’s records).
Other courts have continued to apply a “content” oriented approach looking to whether the records are “personal” or “business” in nature.
U.S. v. Meeks, 719 F.2d 809, 811 (5th Cir. 1983).
“It is well established that individuals issued a summons to supply business records cannot claim a privilege against self incrimination as against furnishing such records.” Id.
In re Steinberg, 837 F.2d 527, 530 (1st Cir. 1988) (holding that “In a prosecution for conspiracy to obstruct grand jury investigation, the Fifth Amendment privilege against self incrimination was held not to extend to compelled production of ‘records of a regularly conducted activity’, rather only to records containing ‘personal entry’”).
If the “act of production doctrine” applies to one type of otherwise unprivileged document at least one court had held that. “ . . . it can as well apply to corporate records”:
“For the purpose of determining the extent to which a natural person may invoke his Fifth Amendment privilege under Fisher, the fact that the subpoenaed documents in his possession were prepared by a corporation is not directly relevant. The Fisher doctrine simply does not turn on either content or authorship of the documents, of possession that are controlling. Couch v. U.S., 409 U.S. 322, 327 (1973). If, as the Supreme Court indicated in Fisher, the act of production doctrine applies to one type of otherwise unprivileged document (accountant’s work papers) it can apply as well to corporate records in an individual’s possession.” In re Grand Jury Subpoena Duces Tecum, 727 F.2d 981, 986 (2d Cir. 1983) (noting that the question of the “act of production” doctrine’s applicability may turn on whether the corporate officer or custodian is subpoenaed in his or her “individual” or representative capacity).
“There would rarely be any dispute over possession [of corporate records] when the person subpoenaed is required to respond in his representative capacity. In producing records as an officer of the company he would not be attesting to his personal possession by them but to their existence and possession by the corporation, which is not entitled to claim a Fifth Amendment privilege with respect to them.”
In re Grand Jury Proceedings (Vargas), 727 F.2d 941, 946 (10th Cir. 1984).
“While Doe clearly recognizes that the production of personal papers may be a testimonial act protected by the Fifth Amendment, that case does not involve papers held by one in a representative capacity . . . As the Supreme Court made clear in Fisher v. United States, 425 U.S. 391, 413 (1976), even though the production of papers held in a representative capacity may be a testimonial act, such production is not protected by the Fifth Amendment.”
Where the act of producing may be incriminating to the subpoenaed corporate officer or custodian an alternative would be to allow the corporate or business partnership to select another to produce and verify the records who is not so encumbered.
See U.S. v. Kordel, 397 U.S. 1, 8-9 (1970).
And while one federal court of appeals consistently requires collective entities faced with a subpoena duces tecum to appoint a custodian to produce the documents,
In re Two Grand Jury Subpoenas Duces Tecum, 769 F.2d 52 (2d Cir. 1985);
In re Grand Jury Subpoenas Issued to 13 Corporations, 775 F.2d 43 (2d Cir. 1985). the sole practitioner need not do so.
(Under Seal) v. U.S., 634 F. Supp. 732 (E.D. N.Y. 1986).