EFTA00186707

EFTA00186707 U.S. Departme A- Justice U.S. Department of Justice United States Attorney Southern District of Florida Grand Jury Coordinator State Attorney's Office 15th Judicial Circuit of Florida West Palm Beach, Florida Re: Federal Grand Jury Subpoena Dear Ms. SOO South Australian Ave., Suite 400 West Palm Beach F September 5, 2006 Thank you for your assistance regarding the transcript of the proceedings from the State's grand jury related to Jeffrey Epstein. I have done some additional research regarding the procedures for obtaining the tapes or transcripts from those proceedings.' The cases that I have enclosed suggest that the appropriate way is to issue a federal grand jury subpoena to the party currently in possession of the tapes and/or transcripts of the proceedings. From my conversations with you and your staff, you currently possess the materials. I reviewed the state statutes governing the release of grand jury transcripts, and both Sections 905.17(1) and 905.27 refer to the.release of the transcripts upon an order of "a court;" they do not specify that the order must be issued by the Palm Beach County Court. The cases that I have enclosed both involve orders issued by a federal court that compel the production of the transcripts. If you feel that you must file a motion to quash the grand jury subpoena, or if you would like to state in writing your inability to produce the transcript absent a court order, we can proceed before the United States District Judge who empaneled the federal grand jury. If you prefer to proceed by motion, I can assist in notifying the Court of the motion, which should be filed ex parte and under seal in accordance with the Federal Rules of Criminal Procedure. If, instead, you prefer to proceed by stating in writing that you cannot produce the items without a court order, I can file a Motion to Compel with a proposed order for the United States District Judge to sign. 'From our conversation and my conversation with , it appears that the proceedings may not yet have been transcribed. The enclosed subpoena calls for the tapes or the transcripts. If you would prefer to produce the tapes to be transcribed by one of our grand jury stenographers, that would satisfy the subpoena. EFTA00186708 GRAND JURY COORDINATOR SEPWAKBER5,2006 FA0132 The subpoena calls for the production of the tape(s) or transcripts by September 15, 2006. If you need any additional time, please let me know. If you have any questions or concerns, please do not hesitate to call me. Thank you for your assistance. Sincerely, R. Alexander Acosta United States Attorney By: cc: Special Agent F.B.I. Assistant United States Attorney EFTA00186709 United States District Court SOUTHERN DISTRICT OF FLORIDA TO: CUSTODIAN OF RECORDS STATE ATTORNEY'S OFFICE 15th Judicial Circuit of Florida Palm Beach County SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-10/2 SUBPOENA FOR: nPERSON X DOCUMENTS OR OBJECTISI YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: Palm Beach County Courthouse Juvenile Courts Building 205 N. Dixie Highway West Palm Beach, Florida 33401 (Temporary location for the United States District Courthouse, West Palm Beach) ROOM: Room 4-A DATE AND TIME: September 15, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Tapes or transcripts of any and all proceedings before the Grand Jury on Wednesday, July 19, 2006, referring or relating to Jeffrey Epstein and/or S including but not limited to witness testimony, statements made by any member of the State Attorney's Office, and instructions given by any member of the State Attorney's Office. Please coordi • of this subpoena and confirm the date and trance with Special Agent Federal Bureau of Investigation, Telephone Please see additional information on reverse This subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court. CLERK (BY) DEPUTY CLERK DATE: August 28, 2006 This subpoena is issued upon application of the UnitctStates of men' ne Address and Phone Number of Assistant U.S. Attorney , o. Us ra We -6235 Fax It •If not applicable. enter "none." rout iv, 11c0 of A0110 FORM ORD-227 EFTA00186710 824 F.Supp. 330 824 F.Supp, 330 (Cite as: 824 F.Supp. 330) C United States District Court, W.D. New York. In the Matter of Subpoena Duces Tecum Directed to the Honorable Kevin M. DILLON, District Attorney of Erie County. Civ. No. 92-13A. Feb. 20, 1992. State district attorney moved to quash subpoena duces tecum issued by federal grand jury seeking production of slate grand jury records as part of investigation into whether police officers violated federal criminal civil rights statute when making arrests. The District Court, Arcara, J., held that federal grand jury was entitled to transcripts and tapes of state grand jury testimony of uncooperating police officers. Motion to quash denied. West Headnotes [1] Grand Jury C=25 193k25 Grand jury is to be afforded wide latitude in conducting its investigation. [2] Grand Jury C^=36.4(2) 193k36.4(2) Federal grand jury subpoena may not be unreasonable or oppressive, it may not violate constitutional, common law or statutory privilege. Fed.Rules Cr.Proc.Rule 17(c), 18 U.S.C.A. [3] Grand Jury eft=a36.9(2) 193k36.9(2) Federal grand jury subpoenas are presumed to be reasonable and party seeking to quash subpoena bears burden of showing that compliance would be unreasonable or oppressive. Fed.Rules Cr.Proc.Rule 17(c), 18 U.S.C.A. [4] Grand Jury C=36.4(2) I93k36.4(2) Federal grand jury was entitled to subpoena transcripts and tapes of state grand jury testimony of police officers as part of investigation to determine whether officers violated federal criminal civil rights laws during or after arrests; disputed testimony was relevant and necessary to federal Page 11 grand jury investigation after police officers refused to cooperate, subpoena was definite and did not call for production of unreasonable amount of documents, United States had strong interest in insuring just enforcement of its criminal laws, and privacy limitations on federal grand jury documents limited potential harm from disclosure. Fed.Rules Cr.Proc.Rules 6(e), 17, 18 U.S.C.A.; N.Y.McKinney's CPL § 190.25, subd. 4. [5J Grand Jury C=36.3(1) 193k36.3(1) [5] States C=18.63 360k18.63 State statutes which preclude disclosure of slate grand jury records to general public cannot be used to prevent federal grand juries from obtaining records through subpoena. [6] Grand Jury €36.4(1) 193k36.4(1) Custodian of records, who is proper party for service of federal grand jury subpoena, is person or entity who is in actual possession of documents at time subpoena is issued. N.Y.McKinney's CPL § 190.25, subd. 4. [7] Grand Jury C=41.10 193k41.10 Basic purposes of New York grand jury secrecy laws are: to prevent accused from escaping before being indicted; to prevent tampering with witnesses; and to protect accused person who is not indicted from unwarranted exposure. N.Y.McKinney's CPL § 190.25, subd. 4. [8] Witnesses C=184(1) 410k184(1) Evidentiary privileges protect confidential communications between persons in special relationships from disclosure and arc generally disfavored in that privileges impede search for truth. [9] Grand Jury tS=36.3(2) 193k36.3(2) When faced with claim that grand jury should be denied evidence because of privilege, reviewing court must weigh potential harm from disclosure against benefits of disclosure. © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186711 824 F.Supp. 330 Page 12 (Cite as: 824 F.Supp. 330, *331) •331 John J. DeFranks, J. Michael Marion, Asst. Erie County Dist. Attys. (Kevin Dillon, Eric County Dist. Atty., of counsel), Buffalo, NY. Russell P. Buscaglia, Asst. U.S. Atty. (Dennis C. Vasco, U.S. Atty., W.D.N.Y., of counsel), Buffalo, NY. DECISION AND ORDER ARCARA, District Judge. Presently before the Court is a motion to quash a subpoena duces !cum, pursuant to Fed.R.Crim.P. 17, filed by Kevin M. Dillon, District Attorney for Erie County, New York. The District Attorney's motion seeks an order from this Court quashing a federal grand jury subpoena for state grand jury records. The parties were given an opportunity to brief and argue their respective positions. After reviewing the submissions of the parties and hearing argument from counsel, the Court denies the District Attorney's motion to quash the subpoena. BACKGROUND A federal grand jury investigation is currently being conducted regarding an incident which occurred on March 8, 1990 in the Main Place Mall, Buffalo, New York, involving the arrest of Mark Aiken and Steven Johnson by officers of the Buffalo Police Department. Specifically, a federal grand jury is investigating allegations that certain officers of the Buffalo Police Department violated federal criminal civil rights laws during and after the arrest of Mr. Aiken and Mr. Johnson. [FNI] FNI. The background and focus of the federal grand Jury investigation is set forth in greater detail in an la camera submission of facts surrounding the federal grand jury investigation submitted by the United States. The District Attorney's Office prosecuted Mr. Aiken and Mr. Johnson on numerous state misdemeanor charges arising from this incident. During the state trial, only two of the six or more officers who were either involved in or witnessed the incident in question actually testified. Consequently, the state trial shed little light on the officers' versions of the allegations that are the focus of the federal criminal civil rights investigation. Following the conclusion of the state trial, the District Attorney's Office presented the case to an Erie County grand jury that considered whether the officers' actions during and after the arrest of Mr. Aiken and Mr. Johnson constituted violations of state law. The United States, which was then conducting *332 its own investigation, delayed taking any action in the matter in order to prevent interference with the state investigation. The Erie County grand jury declined to return criminal charges against any of the police officers. As a result, the state investigation into the police officers' conduct concluded in approximately November, 1990. When the District Attorney's Office concluded its investigation, the United States conducted an independent review of the matter and concluded that a federal grand jury investigation was warranted. After further investigation, evidence was presented to a federal grand jury in October, 1991. The United States claims that the federal grand jury investigation has reached a logjam because of the refusal of the police officers to cooperate with the Federal Bureau of Investigation ("FBI"). Moreover, none of the officers who are most seriously implicated in the investigation submitted any written reports regarding the alleged incident, nor did most of the officers who were present and should have witnessed the incident. Thus, the United States argues that reviewing the transcripts and tapes of the state grand jury testimony of the police officers is the only way that it will be able to learn the officers' versions of what happened. The United States initially attempted to obtain the state grand jury material through informal means. When these efforts failed, a grand jury subpoena was issued to the District Attorney's Office on October 25, 1991 for the production of the grand jury transcripts or tapes of all witnesses who testified in this matter before the Erie County grand jury. At the request of the District Attorney's Office, the return date was delayed until January 8, 1992, in an effort to facilitate the resolution of this matter. When further efforts to resolve the matter failed, the District Attorney filed the present motion to quash, raising four objections to the production of the state grand jury material. First, the District Attorney argues that compliance would be O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186712 824 F.Supp. 330 (Cite as: 824 F.Supp. 330, '332) unreasonable because it would force him to violate state law relating to grand jury secrecy. Second, he argues that the subpoena was served upon the wrong party. Third, the District Attorney contends that compliance would be unreasonable because it would violate policies of comity. Finally, he contends that the subpoenaed grand jury records are privileged. DISCUSSION [1][2][3] It is well-established that a federal grand jury is to be afforded wide latitude in conducting its investigation. See United States v. R. Enters., Inc., 498 U.S. 292, 297-98, 111 S.Ct. 722, 726, 112 L.Ed.2d 795 (1991); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). "A grand jury investigation 'is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.' " Branzburg v. Hayes, 408 U.S. 665, 701, 92 S.Ct. 2646, 2667, 33 L.Ed.2d 626 (1972) (quoting United States v. Stone, 429 F.2d 138, 140 (2d Cir.1970)): In re Grand Jury Subpoena for the Prod, of Certain New York State Sales Tax Records, 382 P.Supp. 1205, 1206 (W.D.N.Y.1974) (quoting Stone, 429 F.2d at 140). In accordance with its broad mandate to investigate possible criminal activity, a federal grand jury has few limitations placed on its subpoena powers. R. Enters., 498 U.S. at 297-98, 111 5.O. at 726. "A grand jury 'may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.' " Id. (quoting Calandra, 414 U.S. at 343, 94 5.O. at 617). The only restrictions that have been placed upon the grand jury concern reasonableness and privileges. A grand jury subpoena may not be unreasonable or oppressive, and it may not violate a constitutional, common law or statutory privilege. Branzburg, 408 U.S. at 688, 92 S.Ct. at 2660; Fed.R.Crim.P. 17(c). Grand jury subpoenas are presumed to be reasonable and the party seeking to quash the subpoena bears the burden of showing that compliance would be unreasonable or oppressive. R. Enters., 498 U.S. at 300-02, 111 S.Ct. at 728. *333 In this case, the District Attorney contends that compliance with the subpoena would be unreasonable. In order to meet his heavy burden of showing that compliance with the subpoena Page 13 would be unreasonable or oppressive, the District Attorney must prove that (1) "there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation;" or (2) the subpoena is too indefinite; or (3) compliance would be overly burdensome. Id. After applying these tests to the instant case, the Court finds that the District Attorney is unable to rebut the presumption that the federal grand jury subpoena is reasonable. [4] Regarding the relevancy question, the United States has set forth in some detail, both in its motion papers and in its in camera submission, the reasons underlying the need for the state grand jury records. The United States has been unable to obtain the information contained in the grand jury records from other sources because the police officers have been unwilling to cooperate with the investigation. Accordingly, the Court finds that the statements of the police officers and other witnesses who testified before the state grand jury are relevant and necessary to the federal grand jury investigation. It does not appear that the District Attorney challenges the subpoena as being too indefinite or overly burdensome. The Court notes that the subpoena is discreet and calls for the production of specific material stemming from a particular state grand jury investigation. Thus, the subpoena is sufficiently definite. Further, the subpoena does not call for the production of an unreasonable amount of documents. Consequently, producing the requested material would require minimal effort on the part of the District Attorney's Office and therefore would not be overly burdensome. The District Attorney argues that compliance with the subpoena would be unreasonable because it would place him in a position where he would be violating state law provisions relating to grand jury secrecy. Specifically, the District Attorney argues that N.Y.Crim.Proc.Law § 190.25, subd. 4, requires that state grand jury materials be kept secret and therefore prohibits him from turning over the subpoenaed grand jury records to the United States. He contends that the only way the United States can gain access to these materials is to file a motion in state court pursuant to N.Y.Crim.Proc.Law § 190.25, subd. 4. The Court finds this argument without merit. 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186713 824 F.Supp. 330 (Cite as: 824 F.Supp. 330, *333) [5] Federal courts have consistently held that state statutes which preclude disclosure of records to the general public cannot be used to prevent federal grand juries from obtaining the records through a subpoena. The cases of In re Grand Jury Subpoena for New York State Income Tax Records, 468 F.Supp. 575 (N.D.N.Y.), appeal dismissed, 607 F.2d 566 (2d Cir.1979), and In re Grand Jury Subpoena for the Prod. of Certain New York State Sales Tax Records, 382 F.Supp. 1205 (W.D.N.Y.1974), are particularly relevant to the case at hand. Both cases involved federal grand jury subpoenas issued to officials of the New York State Department of Taxation for the production of certain tax records. The petitioners moved to quash the subpoenas on the grounds that compliance would be in violation of certain secrecy provisions of New York State tax laws. These laws are very similar to N.Y.Crim.Proc.Law § 190.25, subd. 4, which the District Attorney relies on in his motion. The courts in these cases explicitly rejected the argument that compliance was unreasonable because it would force the state officials to violate state law secrecy provisions. The courts ruled that the Supremacy Clause must prevail over the state nondisclosure provisions. As the court in In re Grand Jury Subpoena for New York State Income Tax Records stated: The Supreme Court has several times indicated that, by virtue of the supremacy clause, state legislation must yield whenever it comes into conflict with an Act of Congress or the superior authority of the Constitution. Thus, inasmuch as the federal *334 grand jury is a product of the Fifth Amendment and its powers, as a result of its long history and specific Congressional attention, the conflict between state confidentiality provisions and Congressional or constitutional investigatory powers has resulted in enforcement of federal grand jury subpoenas despite state statutes which would otherwise prohibit compliance. In re Grand Jury Subpoena for New York State Income Tax, 468 F Sapp. at 577 (citations omitted). Courts in other Circuits, relying on the Supremacy Clause, have similarly rejected claims from state officials that compliance with a federal subpoena would force them to violate state confidentiality laws. See, e.g., In re Special April 1977 Grand Jury, 581 F.2d 589, 593 n. 3 (7th Cir.), cert. denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 705 (1978); Carr v. Monroe Mfg. Co., 431 F.2d 384, 388 (5th Cir.1970), cert. denied, 400 U.S. Page 14 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971); In re 1980 United States Grand Jury Subpoena Duces Tecum, 502 F.Supp. 576, 579-80 (E.D.La.1980); United States v. Grand July Investigation, 417 F.Supp. 389, 393 (E.D.Pa.1976). Thus, the case law clearly establishes that state law provisions relating to grand jury secrecy do not preclude a federal grand jury from obtaining state grand jury records pursuant to a subpoena. [6] The District Attorney further argues that the grand jury subpoena was not served upon the proper party. Specifically, the District Attorney contends that pursuant to the state grand jury secrecy law, N.Y.Crim.P.Law § 190.25, subd. 4, the state court has the ultimate and exclusive control over the subpoenaed grand jury material and, therefore, is the actual custodian of the grand jury records. Thus, the District Attorney argues that the grand jury subpoena should have been served on the presiding state court judge rather than the District Attorney. The Court disagrees. A custodian of records is the person or entity who is in actual possession of the documents at the time the subpoena is issued. In re Grand Jury Impaneled Jan. 21, 1975, 541 F.2d 373, 377 (3d Cir.1976) (citations omitted). In order to testify competently as a records custodian, a witness must be able to verify the authenticity and completeness of the requested documents. In this case, the District Attorney does not dispute the fact that his office possesses the requested grand jury material, nor does he deny that the grand jury materials were generated as a result of an investigation conducted by his office. Accordingly, the District Attorney's office is the sole entity that can competently testify as to the authenticity ' and completeness of the requested material. The presiding state court judge does not possess the subpoenaed materials nor would he or she have any knowledge concerning the authenticity or completeness of the grand jury records. Thus, the Court fords that the District Attorney's Office is the custodian of the state grand jury records and is therefore the proper party to be served with the subpoena. The District Attorney also contends that compliance with the federal grand jury subpoena would be unreasonable because it would violate policies of comity. Specifically, the District Attorney © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186714 824 F.Supp. 330 (Cite as: 824 F.Supp. 330, *334) contends that, just as the federal government has an interest in protecting the secrecy of federal grand jury material, the state has an interest in protecting state grand jury material from disclosure. Thus, the District Attorney argues that, in order to show proper deference to the State's interest in the confidentiality of the grand jury records, the United States should be required to move initially for disclosure before the presiding state court judge. The Court finds that no such requirement exists. [7] The Court recognizes that "policies of comity and federalism require some deference to the objective sought to be achieved by state confidentiality provisions." In re Grand Jury Subpoena for New York State Income Tax Records, 468 F.Supp. at 577. The basic purposes of the state grand jury secrecy laws in question are: (1) to prevent an accused from escaping before he is indicted; (2) to prevent tampering with witnesses; and (3) to protect an accused person who is not indicted from unwarranted exposure. People v. McAdoo, 45 Misc.2d 664, 257 N.Y.S.2d 763, aff'd, 51 Misc.2d 263, 272 *335 N.Y.S.2d 412, cert. denied, 386 U.S. 1031, 87 S.Ct. 1479, 18 L.Ed.2d 592 (1967). In this case, compliance with the federal grand jury subpoena will not subvert New York's interest in maintaining the secrecy of grand jury proceedings because federal grand jury proceedings are also conducted secretly. The secrecy requirements of Fed.R.Crim.P. 6(e), will adequately ensure that none of the purposes of the state grand jury secrecy laws are undermined by compliance with the federal grand jury subpoena. See In re New York Grand Jury Subpoena for State Income Tax Records, 468 F.Supp. at 577-78; see also United States v. Field, 532 F.2d 404, 407-08 (5th Cir.1976), cm. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309; In re Grand Jury Empaneled Jan. 21, 1975, 541 F.2d at 377-78. Moreover, it is important to note that comity is a policy which must be balanced against "the necessity of thorough grand jury investigations into violations of federal law." In re Grand Jury Subpoena for New York State Income Tax Records, 468 F.Supp. at 577. In this case, the subpoenaed documents are necessary to the federal grand jury investigation. Thus, the policy of comity must yield to the constitutional right and duty of the federal grand jury to conduct a broad investigation. Page 15 Id. 468 F.Supp. at 578. Finally, the District Attorney contends that the motion to quash should be granted because the subpoenaed materials are privileged. Specifically, the District Attorney argues that the state grand jury secrecy law creates a federal privilege under Federal Rule of Evidence 501. The Court finds this argument without merit. [8] Evidentiary privileges protect confidential communications between persons in special relationships from disclosure. By their very nature they impede the search for the truth and are therefore generally disfavored. Tranunel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980); Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); United States v. Nixon, 418 U.S. 683, 709-10, 94 S.Ct. 3090, 3108- 09, 41 L.Ed.2d 1039 (1974). Accordingly, "the party asserting a privilege bears the burden of proving the applicability of the privilege," In re Bevil!, Bressler & Schubnan Asset Management Corp., 805 F.2d 120, 126 (3d Cir.1986), and privileges, "whatever their origins ... [should] not [be] lightly created or expansively construed." Nixon, 418 U.S. at 710, 94 5.O. at 3109. [9] When faced with a claim that a grand jury should be denied evidence because of privilege, the reviewing court must weigh the potential harm from disclosure against the benefits of disclosure. American Civil Liberties Union of Miss., Inc. v. Finch, 638 P.2d 1336, 1343 (5th Cir.1981). In this case, the federal grand jury is investigating possible violations of federal criminal civil rights laws by police officers of the Buffalo Police Department. As fully explained in the United States' in camera statement of facts, the subpoenaed documents are vital to the grand jury investigation and are not simply needed to assess credibility of potential witnesses. In addition, the information sought to be obtained from the subpoenaed material is not otherwise available since the police officers are unwilling to talk to the FBI. Thus, the grand jury may not be able to learn the truth of the allegations without the subpoenaed material. On the other side of the scale, the potential harm from disclosure of the state grand jury material is minimal. Because Pcd.R.Crhn.P. 6(e) limits disclosure of federal grand jury material, the O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186715 824 F.Supp. 330 (Cite as: 824 F.Supp. 330, *335) secrecy of the subpoenaed documents would be closely guarded. Thus, since the benefits of disclosure in this case substantially outweigh the potential harm from disclosure, the Court fords that the state grand jury records are not privileged as a matter of federal common law. See Matter of Special April 1977 Grand Jury, 581 F.2d at 592-93; In re Grand July Proceeding, 563 F.24 577, 582-85 (3d Cir.1977); In re Grand Jury Ernpaneled January 21, 1975, 541 F.2d at 382-83. In sum, the United States has a strong interest in ensuring the just enforcement of its criminal laws. Public policy has long favored giving the grand jury broad powers of investigation. The District Attorney, who has the burden of proving that the subpoena should be quashed, has failed to establish *336 that the subpoena is unreasonable or that it Page 16 violates any recognized privilege. Furthermore, because of the secrecy provisions of the federal grand jury, little or no prejudice would result to the state from compliance with the federal grand jury subpoena. CONCLUSION For the reasons stated, the Court denies the District Attorney's motion to quash the federal grand jury subpoena. This Decision and Order and the entire file are to be filed under seal. It is so ordered. 824 F.Supp. 330 END OF DOCUMENT (0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186716 832 F.2d 554 832 F.2d 554, 24 Fed. R. Evid. Serv. 275 (Cite as: 832 F.2d 554) United States Court of Appeals, Eleventh Circuit. In re GRAND JURY PROCEEDINGS —Subpoena to State Attorney's Office. Thomas H. Greene, Dawson A. McQuaig, Jake Godbold, Don McClure, Intervenors - Appellants. Nos. 87-3228, 87-3412--87-3414, and 87-3472. Oct. 26, 1987. Rehearing and Rehearing En Banc Denied Dec. 10, 1987. Persons whose state grand jury testimony had been subpoenaed by a federal grand jury appealed from order of the United States District Court for the Middle District of Florida, Nos. MISC-J-86.183-14, MISC-J-86-183- 4, Susan H. Black, J., which denied motions to suppress subpoenas. The Court of Appeals, Tjoflat, Circuit Judge, held that: (1) appellants could appeal denial of the motions to the extent that they asserted a privilege, but (2) Florida statute imposing secrecy on grand jury does not create evidentiary privilege. Affirmed in part and dismissed in part. West Headnotes [1] Criminal Law Cr 1023(3) 1101(1023(3) Grand jury proceeding is not a "civil action" for purposes of statute permitting interlocutory appeals in civil actions with respect to controlling questions of law. 28 U.S.C.A. § 1292(b). [2) Criminal Law 4=1023(3) 110k1023(3) Persons whose state grand jury testimony had been subpoenaed by federal grand jury could appeal the denial of their motions to quash the subpoenas to the extent that they asserted a privilege as to the material, but could not raise issues of procedural violations or federal-state comity on appeal. [3] Criminal Law €1023(3) 110k1023(3) When party has been subpoenaed to testify or produce records for grand jury and third-party merely fears that privileged material may be disclosed along with other, nonprivileged material, Page 1 the case is not ripe for appellate review until the subpoenaed party has actually been asked to reveal specific material covered by the assertive privilege. [4] Grand Jury tE,36.9(2) 193k36.9(2) Federal common-law presumption of grand jury secrecy cannot be asserted in the form of a privilege by those seeking to prevent disclosure to a federal grand jury of their state grand jury testimony. Fed.Rules Cr.Proc.Rule 6(e), 18 U.S.C.A. [5] Grand Jury C=41.10 193k41.10 [5] Witnesses C=184(I) 410k184(1) Florida statute imposing secrecy on grand jury proceedings does not create an evidentiary privilege. West's F.S.A. § 905.27; Fed.Rules Evid.Rule 501, 28 U.S.C.A. *555 Lamar Winegeart, III, Arnold, Stratford & Booth, Jacksonville, Fla., for Greene. Elizabeth L. White, Sheppard & White, William Sheppard, Jacksonville, Ha., for McQuaig. Lacy Mahon, Jr., Jacksonville, Ha., for appellants. Robert W. Merkie, Curtis S. Fallgatter, M. Alan Ceballos, Asst. U.S. Attys., U.S. Attorney's Office, Jacksonville, Ha., for appellee. Appeals from the United States District Court for the Middle District of Florida. Before TJOFLAT and KRAVITCH, Circuit Judges, and TUTPLE, Senior Circuit Judge. TJOFLAT, Circuit Judge: Appellants appeal from an order of the district court denying their motion to quash a federal grand jury subpoena directing a state prosecutor to produce transcripts of their testimony before a state grand jury. We affirm. I. In 1985, the State Attorney's Office for the Fourth Judicial Circuit of the State of Florida initiated a grand jury investigation into allegations of improper O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186717 832 F.2d 554 (Cite as: 832 F.2d 554, *555) influence peddling by certain public officials of the City of Jacksonville. Witnesses appearing before the state grand jury included the four appellants in this case: Jake Godbold, then the mayor of Jacksonville, Don McClure, Godbold's chief administrative aide, Dawson McQuaig, a former general counsel for the city, and Thomas Greene, a practicing attorney and an associate of Godbold's. Each of these witnesses appeared and testified voluntarily. No criminal charges resulted from the state grand jury investigation. In August 1985, however, the state grand jury issued a report that identified several instances in *556 which "political favors and game-playing for friends" had infected the City's process of awarding contracts for professional services. Godbold, McClure, McQuaig, and Greene each waived his right under Fla.Stat. § 905.28(1) (1985) to suppress the report. The report, however, did not contain the substance of their testimony. Meanwhile, federal prosecutors had initiated a federal grand jury investigation into substantially the same matters investigated by the state grand jury. Godbold, McQuaig, McClure, and Greene each indicated that he would assert the fifth amendment if subpoenaed to testify before the federal grand jury. Relying on the disclosure provisions of Fla.Stat. § 905.27(1)(c) (1985), [F1141] the United States in August 1985 petitioned a state judge to order the State Attorney to turn over to the federal grand jury the appellants' state grand jury testimony. The United States made no factual submission in support of its petition. The state judge refused to enter the order, characterizing the effort to obtain the testimony as a "fishing expedition." PI41. Under this provision, a court may order disclosure of grand jury testimony for the purpose of effiurthering justice." In October 1986, the federal grand jury issued a subpoena duces tecum ordering the State Attorney to produce appellants' state grand jury testimony. The State Attorney moved the federal district court to quash the subpoena, arguing that disclosure of grand jury transcripts was unlawful under Florida law, that the United States had not demonstrated sufficient need for the transcripts, and that comity required the district court to honor the state court's Page 2 ruling against disclosure. Greene and McQuaig then moved the court to permit them to intervene pursuant to Fed.R.Civ.P. 24 and to file similar motions to quash. In his motion to intervene, McQuaig asserted that prior to testifying before the state grand jury, he had received assurances from the State Attorney that Florida law prohibited any disclosure of his grand jury testimony. Greene did not allege in his motion that he had received similar assurances, but stated that he was entitled to intervene because "state grand jury proceedings fare] secret and confidential by virtue of the provisions of Chapter 905 of the Florida Statutes." The district court granted the motions to intervene, and subsequently permitted Godbold and McClure to intervene as well. [FN2] PN2. Godbold and McClure also based their motions to intervene on the Florida grand jury secrecy requirement. The substance of the privilege that appellants assert is discussed in Part III, him. In November 1986, the district court entered an order inviting the United States to make an ex pane factual submission showing why it needed the state grand jury transcripts. The government declined to accept the invitation and made no submission. The court then entered an order granting the motions to quash. Applying the balancing test set forth in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979), the court found that the government had failed to establish a sufficient need for the testimony. Twenty-eight days after the court granted the motions to quash, the United States filed a "Motion for Reconsideration of Opinion and Order" along with an ex parte affidavit identifying facts supporting the grand jury's need for the testimony. The district court questioned the procedural correctness of the government's motion for reconsideration, and stated that under ordinary circumstances it would not consider the motion. In the court's view, however, denial of the motion would not prevent the United States from obtaining the testimony: the United States could simply reissue the subpoena and defeat any motion to quash on the strength of the information contained in the ex pane affidavit. The court concluded that the most efficient solution was to consider the newly submitted information in the context of the government's motion for reconsideration. After O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186718 832 F.2d 554 (Cite as: 832 F.2d 554, *556) considering the new information in camera, the district court entered an amended order in which it reversed its original order denying the motion to quash. The district court certified its amended order for interlocutory *557 appeal pursuant to 28 U.S.C. § 1292(b) (1982 & Supp. 11 1984), and this court granted permission to appeal. The four intervenors appealed, although the State Attorney did not. Appellants make two arguments before this court. First, they argue that the government's motion for reconsideration was untimely and that the district court therefore had no authority to hear it. According to appellants, the applicable time limit for the motion was the ten-day limit of Fed.R.Civ.P. 59(e), not, as the government contends, the thirty-day limit of 18 U.S.C. § 3731 (1982 & Supp. II 1984). Second, appellants argue that the district court's amended order was in error for the following reasons: (1) the government had failed to demonstrate a sufficient need for appellants' grand Jury testimony, and (2) comity required the court to give greater deference to the state judge's decision against releasing the testimony. Because of the nature of our ruling today, we do not reach the merits of these arguments. 11. We first address the threshold issue whether we have jurisdiction to hear this appeal. Although this court granted the intervenors permission to appeal pursuant to section 1292(6), we must of course dismiss the appeal if we are without jurisdiction. See Robinson v. Tanner, 798 F.2d 1378, 1379 (11t6 Cir.1986), cen. denied, 481 U.S. 1039, 107 S.Ct. 1979, 95 L.Ed.2d 819 (1987). Under section 1292(b), a district court may certify for appeal a non-final order entered in a civil action if the court is of the opinion that the order "involves a controlling question of law as to which there is substantial ground for difference of opinion" and that resolution of the question "may materially advance the ultimate termination of the litigation." By its terms, section 1292(b) applies only to orders in civil actions, and has no application to appeals in criminal cases. See United States v. Doucet, 461 F.2d 1095 (5th Cir.1972); United States v. Lowe, 433 F.2d 349 (5th Cir.1970). Therefore, we have no jurisdiction to hear this appeal pursuant to section 1292(b) unless the district court's order Page 3 denying the motion to quash can be considered an order entered in a "civil action." [1] We hold that a grand jury proceeding is not a "civil action" for purposes of section 1292(b). Just in terms of the plain meaning of words, it scents self-evident that an order denying a motion to quash a subpoena issued by a grand jury investigating possible criminal violations is not part of a 'civil action." We base our conclusion on more than a mechanical labeling of the proceedings below, however. By expressly limiting section 1292(b)'s application to "controlling question[s] of law' in "civil" cases, Congress clearly indicated its intent not to disturb well-established precedent forbidding piecemeal review of grand jury proceedings. In Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), decided eighteen years before Congress enacted section 1292(b), the Supreme Court held that a district court's denial of a motion to quash a grand jury subpoena was not an appealable final decision within the meaning of the predecessor section of 28 U.S.C. § 1291 (1982). Noting that the Constitution itself makes the grand jury part of the criminal process, the Court concluded that "PR is no less important to safeguard against undue interruption the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found.' Id. at 327, 60 S.Ct. at 542; see also Di Bella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656-57, 7 L.Ed.2d 614 (1962) ("This insistence on finality and prohibition of piecemeal review discourage undue litigiousness and leaden-footed administration of justice, particularly damaging to the conduct of criminal cases."). Although Cobbledick was based on the principle of finality found in section 1291, that same principle finds expression in section 1292(b). We are unable to conclude that Congress, by authorizing permissive interlocutory appeals of "controlling question[s] of law" in "civil" actions, intended to undermine the strong policy against permitting appellate interruption of grand jury *558 proceedings. Accord In re April 1977 Grand Jury Subpoenas, 584 F.2d 1366, 1369 (6th Cir.1978) ("[Section 1292(b) ] limits interim review of 'a controlling question of law' to civil cases only and, therefore, should not be read to allow interlocutory review of grand jury proceedings."), cen. denied, 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492 (1979). it 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186719 832 F.2d 554 (Cite as: 832 F.Zd 554, *558) [2] We next examine whether there is a separate basis for appellate jurisdiction in this case. As we have already indicated, orders denying motions to quash grand jury subpoenas arc ordinarily not appealable fmal orders under section 1291. The subpoenaed party can obtain review by refusing to comply with the subpoena and then contesting a contempt citation, which is immediately appealable. See United States v. Ryan, 402 U.S. 530, 532-33, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971). The contempt route for obtaining review, however, is not open to a third party who claims a privilege of nondisclosure with respect to materials in the custody of the subpoenaed party. In such a case, the putative privilege-holder has no power to compel the subpoenaed party to incur a contempt citation. And the subpoenaed party, unless he has either a particularly close relationship to the putative privilege-holder or a personal interest in nondisclosure of the material, is unlikely to risk a contempt citation simply to vindicate the rights of the third party. In this situation, the order denying the motion to quash is indeed final with respect to the putative privilege-holder, for any prejudice he suffers as a result of disclosure will remain forever unredressed unless appeal is permitted. Accordingly, this circuit follows the so-called Perlman exception to the general rule prohibiting interlocutory appeal of orders denying motions to quash grand jury subpoenas. See In re Grand Jury Proceedings (moist), 689 F.2d 1351 (11th Cir.1982) ; In re Grand Jury Proceedings (Fine), 641 P.2d 199 (5th Cir. Unit A Mar. 1981); cf. In re International Horizons, Inc., 689 P.2d 996 (11th Cir.1982) (discovery order in bankruptcy proceedings). This exception, derived from Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), and confirmed in United States v. Nixon, 418 U.S. 683, 691, 94 S.Ct. 3090, 3099, 41 L.Ed.2d 1039 (1974), permits an order denying a motion to quash to be "considered final as to the injured third party who is otherwise powerless to prevent the revelation." Fine, 641 F.2d at 202. [3] The circumstances supporting application of the Perlman exception are present in this case. Relying on the Florida grand jury secrecy requirement, appellants in essence assert a privilege of nondisclosure. The material with respect to which they assert the privilege--transcripts of their state grand jury testimony--is in the custody of the Page 4 State Attorney. The State Attorney has indicated his intention to produce the transcripts. In light of these circumstances, the order denying the motion to quash is a final order as far as appellants are concerned. We therefore have jurisdiction to hear their appeal. [F143] FN3. We note that the only material sought from the subpoenaed party in this case is material that falls squarely within the privilege asserted by the third parties. This is not a case, then, where a party has been subpoenaed to testify or produce records and a third party merely fears that privileged material may be disclosed along with other, nonprivileged material. In the latter situation, the case is not ripe for appellate review until the subpoenaed party has actually been asked to reveal specific material covered by the asserted privilege. See In re Grand Jury Proceedings (Doe ), 831 F.2d 222 (11th Cir. 1987). III. In deciding that the narrow Perlman exception applies in this case, we have also necessarily defied the scope of the matters properly before us for review. Appellants raise several objections to disclosure, including procedural objections and objections based on comity considerations and the need to protect the integrity of the Florida grand jury system. However, the only matter that the Perlman exception gives us jurisdiction to review is the appellants' claim of privilege to prevent disclosure of their state grand jury testimony. *559 The rationale of the Perlman exception extends only to appeals based on privileges personal to the third party seeking review: if the subpoenaed party has a direct or primary interest in the right or privilege in question, the concerns giving rise to the Perlman exception simply are not present. Here, to the extent that their objections to disclosure are based on concerns relating to comity and the integrity of the Florida grand jury, appellants cannot argue that the subpoenaed party had no interest in seeking to vindicate their derivative rights. Indeed, the subpoenaed party--the State of Florida as represented by the State Attorney-- had as its primary interest the protection of its grand jury system. Accordingly, the Perlman exception does not give us jurisdiction to review the appellants' arguments concerning comity and the need to preserve the integrity of the Florida grand jury. [FN4] Nor does it give us jurisdiction to review their procedural arguments. Thus, we do not pass upon the district court's disposition of 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186720 832 P.2d 554 Page 5 (ate as: 832 F.2d 554, *559) those matters and we turn to appellants' claims of privilege. FN4. We should emphasize that this discussion relates only to appellants' right to appeal under the Perlman exception. It does not relate to their standing to raise these claims before the district court. The appellants' motions to intervene in the district court proceedings reveal the nature of the privilege they assert. Appellant McQuaig's motion stated that "Mrior to appearing before the [state] Grand Jury, Mr. McQuaig was advised by the State Attorney that pursuant to Section 905.27, Fla.Stat. (1985): a) none of the testimony he provided to the Grand Jury was disclosable under the law; and b) any disclosure of said testimony was a crime." Appellant Green's motion stated that "[the] state grand jury proceedings were secret and confidential by virtue of the provisions of Chapter 905 of the Florida Statutes." Appellant Godbold's motion stated that "testimony was provided with the understanding on the part of Jake Godbold that pursuant to § 905.27 of the Florida Statutes, his testimony would not and could not be disclosed under the law." Finally, appellant McClure's motion stated that "[t]he substantial interest of Don McClure is equal to or greater than that of the two other parties previously allowed to intervene." In essence, then, appellants derive the privilege they assert from the Florida statutory grand jury secrecy requirement. The statute imposing that requirement provides as follows: (1) A grand juror, state attorney, assistant state attorney, reporter, stenographer, interpreter, or any other person appearing before the grand jury shall not disclose the testimony of a witness examined before the grand jury or other evidence received by it except when required by a court to disclose the testimony for the purpose of: (a) Ascertaining whether it is consistent with the testimony given by the witness before the court; (b) Determining whether the witness is guilty of perjury; or (c) Furthering justice. Fla.Stat. § 905.27 (1985). [FN5] FNS. The remainder of section 905.27 provides as follows: (2) It is unlawful for any person knowingly to publish, broadcast, disclose, divulge, or communicate to any other person, or knowingly to cause or permit to be published, broadcast, disclosed, divulged, or communicated to any other person, in any manner whatsoever, any testimony of a witness examined before the grand jury, or the content, gist, or import thereof, except when such testimony is or has been disclosed in a court proceeding. When a court orders the disclosure of such testimony pursuant to subsection (1) for use in a criminal case, it may be disclosed to the prosecuting attorney of the court in which such criminal case is pending, and by him to his assistants, legal