Grand Jury Proceedings, In Re: , 142 F.3d 1416 ( 1998 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-2322.
IN RE GRAND JURY PROCEEDINGS (No. 93-2)
JOHN ROE, INC., John Roe, Movants-Appellants,
v.
UNITED STATES of America, Appellee.
June 12, 1998.
Appeal from the United States District Court for the Middle District of Florida. Harvey E.
Schlesinger, Judge.
Before HATCHETT, Chief Judge, TJOFLAT, Circuit Judge, and GODBOLD, Senior Circuit Judge.
TJOFLAT, Circuit Judge:
In this appeal, targets of a federal grand jury investigation, John Roe, Inc. and John Roe,1 the
principal officer and shareholder of John Roe, Inc., challenge the district court's denial of their
motion to quash a grand jury subpoena served on Attorney Doe, their former attorney (the
"attorney"). After the district court denied appellants' motion to quash, the attorney appeared before
the grand jury and testified, answering all of the questions put to him. Because the attorney has now
testified, and because our jurisdiction "depends upon the existence of a case or controversy," North
Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971), we must consider
whether this appeal is moot.
Appellants assert that their appeal is not moot. They argue that the in camera procedure the
district court employed in disposing of their motion to quash denied them due process of law, and
1
Because this appeal involves proceedings before a grand jury, and the briefs and record on
appeal are under seal, we use pseudonyms to preserve anonymity.
that, should we agree, we have the power to grant effective relief. Given the availability of effective
relief, their argument continues, this appeal is not moot. We find no merit in appellants' argument,
and therefore declare this appeal moot. Accordingly, we dismiss the appeal and instruct the district
court, on receipt of our mandate, to dismiss the case.
I.
The attorney appeared before the grand jury, pursuant to subpoena,2 on several occasions in
connection with a criminal investigation of appellants.3 During these appearances, the attorney was
permitted to write down any question he thought might call for the disclosure of communications
protected by the attorney-client privilege, and, before answering the question, to consult with
appellants who were stationed outside the grand jury room. In most, if not all instances, he
thereafter refused to answer the question.
After the attorney's third appearance, the United States Attorney (the "Government") moved
the district court, in camera, for an order compelling the attorney to answer the questions he had
refused to answer on the ground of attorney-client privilege. According to the Government, those
questions and any reasonable follow-up questions would not call for the disclosure of
communications protected by the attorney-client privilege because those communications fell within
2
The attorney's representation of appellants had ceased by the time the first subpoena issued.
3
Following the issuance of the first subpoena and prior to the attorney's appearance before the
grand jury, appellants moved the district court to quash the subpoena on the ground that the
grand jury's inquiry would require the attorney to disclose communications protected by the
attorney-client privilege. The district court denied their motion, concluding that it was
premature; to grant the motion, the court would have had to speculate as to the questions that
might be put to the attorney and whether they would elicit communications protected by the
privilege.
the crime-fraud exception to the privilege.4 To demonstrate the applicability of the exception, the
Government submitted to the court in camera supplemental material providing factual support for
the motion to compel. This material included the grand jury testimony of the attorney (including
the questions he had refused to answer) and of some witnesses; documents in the grand jury's
possession; and relevant affidavits.5
Finding that the Government's submission established a prima facie case that appellants had
been executing a fraudulent scheme and that they had used the attorney to assist them in doing so,
the district court granted the Government's motion to compel and ordered the attorney to answer the
grand jury's questions. The court entered the order in camera, with the proviso that the Government
disclose the existence of the order to appellants and permit the attorney to read the order.
Following the issuance of the compel order, the grand jury subpoenaed the attorney to appear
again. When appellants learned of the subpoena, they moved the court in camera for leave to
intervene and to quash the subpoena.6 Citing the attorney-client privilege, they argued that the
subpoena should be quashed in full on the ground that anything the attorney might say to the grand
jury would reveal privileged communications. Appellants also requested that before ruling on their
motion to quash, the court provide them copies of the Government's in camera motion to compel
and supplemental supporting materials, as well as the court's order granting that motion (the "in
camera documents"). According to appellants, without these in camera documents, they could not
4
Under this exception, the attorney-client privilege does not extend to communications made
for the purpose of furthering a crime or fraud. See United States v. Zolin, 491 U.S. 554, 562-63,
109 S.Ct. 2619, 2626, 105 L.Ed.2d 469 (1989); see also Clark v. United States, 289 U.S. 1, 15,
53 S.Ct. 465, 469, 77 L.Ed. 993 (1933).
5
The record does not indicate whether these affidavits had been presented to the grand jury.
6
Appellants' motion also asked the court to stay its order compelling the attorney to answer
the grand jury's questions until it ruled on their motion to quash.
respond to the Government's representation that the crime-fraud exception foreclosed the assertion
of the attorney-client privilege.
The district court granted appellants' motion to intervene and subsequently entertained, in
camera, their memorandum in support of the motion to quash. The court denied appellants' request
for copies of the in camera documents, however. After considering the parties' submissions on the
application of the crime-fraud exception, the court adhered to its earlier ruling—that the crime-fraud
exception rendered the communications between the attorney and appellants discoverable—and
therefore denied appellants' motion to quash. Addressing appellants' argument that by denying them
access to the in camera documents, the court had deprived them of their day in court on the
crime-fraud issue, the court stated that appellants would have a full opportunity to litigate that issue
in a contempt hearing, should the attorney refuse to answer the grand jury's questions.
After the district court denied their motion to quash, appellants brought this appeal. They
also moved the district court to stay its order pending appeal. The court denied their motion; we
likewise denied a stay. Thereafter, the attorney appeared before the grand jury and fully responded
to its questions. No indictment has issued.
II.
Appellants ask us to vacate the district court's order denying their motion to quash on the
ground that the district court's refusal to provide them with the in camera documents denied them
a reasonable opportunity to be heard on the applicability of the crime-fraud exception and, thus,
denied them due process of law.7 We cannot entertain this argument8 without first determining
7
Appellants claim that because they were not provided with these in camera
documents—particularly, the questions the grand jury intended to ask the attorney—they were
not able to respond meaningfully to the Government's argument that the crime-fraud exception
foreclosed the assertion of the attorney-client privilege. Appellants' claim is disingenuous. As
discussed supra, the transcripts of the attorney's grand jury appearances show that he consulted
whether this appeal is moot. We therefore consider that issue.9
with appellants before answering any question that might disclose a privileged communication.
In light of this fact, we think it fair to say that appellants were aware of the nature of the
information that the Government sought from the attorney.
8
The due process claim that appellants advance has been explicitly considered by some of our
sister circuits; on each occasion, the resolution of the claim involved a fact-sensitive analysis.
See e.g. In re Grand Jury Proceedings Thursday Special Grand Jury, Sept. Term 1991, 33 F.3d
342, 350-53 (4th Cir.1994) (recognizing that Fourth Circuit precedent establishes validity of
such in camera review and finding no due process violation on the facts of the case); In re John
Doe, Inc., 13 F.3d 633, 635-36 (2nd Cir.1994) (finding that in camera review of document
submitted by government to support applicability of crime-fraud exception did not violate due
process); see also In re Grand Jury Proceedings (Doe), 867 F.2d 539, 540-41 (9th Cir.1989)
(same); In re Antitrust Grand Jury, 805 F.2d 155, 160-62 (6th Cir.1986) (same); In re Special
Sept. 1978 Grand Jury (II), 640 F.2d 49, 57-58 (7th Cir.1980) (same).
We find no Eleventh Circuit precedent considering whether an in camera
procedure of the kind employed by the district court in the instant case denies due
process to a party standing in appellants' shoes. However, we did consider the
appropriateness of an in camera procedure in In re Grand Jury Proceedings (Freeman),
708 F.2d 1571 (11th Cir.1983). In that case, the targets of a grand jury investigation
challenged the district court's use of in camera procedure to determine whether their
former attorney, whom the grand jury had subpoenaed, should be precluded from
revealing allegedly privileged communications. In particular, the targets argued that "the
district court improperly considered the Government's in camera supplemental motion to
compel and accompanying memorandum, while refusing them or their attorneys access to
the material." Id. at 1576. Without indicating whether the targets' argument was
premised on the due process clause, we stated: "It is settled ... that the cautious use of in
camera proceedings is appropriate to resolve disputed issues of privilege." Id. None of
the cases cited for this proposition addressed the due process requirements of employing
an in camera procedure of this sort.
9
As an initial matter, we explain the basis for our appellate jurisdiction. Under 28 U.S.C. §
1291 (1994), our jurisdiction is limited to final decisions of the district courts. Generally, orders
denying motions to quash subpoenas are not final decisions and, thus, are not immediately
appealable. United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 1581-82, 29 L.Ed.2d 85(1971). Under the exception recognized in Perlman v. United States, 247 U.S. 7, 13, 38 S.Ct.
417, 419, 62 L.Ed. 950 (1918), however, an order denying a motion to quash may be "considered
final as to the injured third party who is otherwise powerless to prevent the revelation." In re
Grand Jury Proceedings (Fine), 641 F.2d 199, 201-02 (5th Cir.1981) (Under Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), cases decided by the former Fifth Circuit prior
to the close of business on September 30, 1981, are binding precedent.); see also In re Fed.
Grand Jury Proceedings (Cohen), 975 F.2d 1488, 1491-92 (11th Cir.1992) (applying Perlman
exception when third-party clients appealed order denying motion to quash subpoena compelling
A.
The exercise of federal jurisdiction "depends upon the existence of a case or controversy."
Rice, 404 U.S. at 246, 92 S.Ct. at 404. A federal court has no authority "to give opinions on moot
questions or abstract propositions, or to declare principles or rules of law which cannot affect the
matter in issue in the case before it." Church of Scientology v. United States, 506 U.S. 9, 12, 113
S.Ct. 447, 449, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132,
133, 40 L.Ed. 293 (1895)). If, during the pendency of an appeal, an event occurs that makes it
impossible for this court to grant " "any effectual relief whatever' " to a prevailing party, the appeal
must be dismissed as moot. Id. at 12, 113 S.Ct. at 449 (quoting Mills, 159 U.S. at 653, 16 S.Ct. at
133).
Considering facts analogous to the instant case, we dismissed an appeal as moot in In re
Federal Grand Jury Proceedings 89-10(MIA), 938 F.2d 1578, 1580-81 (11th Cir.1991). In that case,
the appellant was the target of a grand jury investigation. During the course of the investigation, the
government moved the district court to compel the testimony of the appellant's attorney, who had
refused to answer the grand jury's questions on the ground of attorney-client privilege. After
conducting an in camera review of materials submitted by the parties, the district court granted the
government's motion, and the target appealed. While the appeal was pending, however, the attorney
appeared before the grand jury and testified. Because the attorney had already testified, we declared
the case moot. Id. at 1580-81.10
their attorney to testify). Accordingly, as to appellants, the district court's order denying their
motion to quash is a final appealable order under 28 U.S.C. § 1291.
10
Before declaring the case moot, we considered the applicability of the "capable of repetition
yet evading review" exception to the mootness bar. We did not consider whether the case might
not be moot because relief, such as that appellants seek in the instant case, might be available;
rather, we assumed that relief could not be available unless the grand jury indicted the appellant.
In the absence of any controlling precedent to the contrary, this case would appear to involve
nothing more than a straightforward application of In re Federal Grand Jury Proceedings 89-10,
and would merit summary dismissal of the appeal. The Supreme Court's decision in Church of
Scientology v. United States, 506 U.S. 9, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992), however, has
presented us with two impediments to the facile disposition of this case: First, the Court's holding
in Scientology effectively overruled the cases that served as the precedential basis for our decision
in In re Federal Grand Jury Proceedings 89-10, perhaps calling into question the continuing validity
of that decision; Second, appellants have crafted an argument, based largely on dicta from a
footnote in Scientology, 506 U.S. at 13 n. 6, 113 S.Ct. at 450 n. 6, that, notwithstanding the fact that
the attorney has testified, their appeal is not moot because effective relief could be granted if they
were to prevail on the merits of their claim. We find that Scientology is distinguishable from the
case at hand and that no effective relief is available to remedy appellants' claim. We therefore reject
appellants' argument and reaffirm our holding in In re Federal Grand Jury Proceedings 89-10.
B.
Turning to the first issue, our decision in In re Federal Grand Jury Proceedings 89-10 relied
We further assumed that, if an indictment issued, the appellant's objection, based on the
attorney-client privilege, would be renewed. The question thus became whether that objection
would evade review. The answer was, of course, obvious: the appellant could move the court
prior to trial, or during trial, or both, to suppress the allegedly privileged testimony. In short,
there was no need to rule on the admissibility of the testimony prior to indictment; moreover, as
the panel explained, to do so would be to render an advisory—and thus constitutionally
impermissible—opinion, because an indictment might not issue. See In re Fed. Grand Jury
Proceedings 89-10, 938 F.2d at 1580 (citing In re Grand Jury Proceedings (Klayman), 760 F.2d
1490, 1491-92 (1985)). Accordingly, because the attorney had already testified, and because the
attorney-client privilege issue would not escape review if the government did seek to use the
testimony in a future trial, we found the appeal moot. See id. at 1580-81. In the instant case,
appellants also may seek post-indictment review, if proceedings arise in which the Government
seeks to use the attorney's grand jury testimony; the "capable of repetition yet evading review"
exception to mootness is, thus, inapplicable to the instant case.
primarily on two prior decisions, United States v. First American Bank, 649 F.2d 288 (5th Cir. Unit
B 1981),11 and Lawhon v. United States, 390 F.2d 663 (5th Cir.1968), both of which were effectively
overruled by Scientology. In Scientology, the Church of Scientology ("Scientology") appealed a
summons enforcement order requiring a state court clerk to comply with an Internal Revenue
Service summons. The summons compelled the clerk to deliver to the IRS audio tapes of
conversations between officials of Scientology and their lawyers; Scientology argued that these
conversations were protected by attorney-client privilege. During the pendency of the appeal, the
clerk delivered the tapes to the IRS, thus complying with the summons. Given this compliance, the
court of appeals found the appeal moot.
The Supreme Court reversed, holding that the appeal was not moot because effective relief
could be granted to Scientology if it prevailed on the merits. Recognizing Scientology's possessory
interest in the tapes, the Court explained:
Taxpayers have an obvious possessory interest in their records. When the Government has
obtained such materials as a result of an unlawful summons, that interest is violated and a
court can effectuate relief by ordering the Government to return the records.... Even though
it is now too late to prevent, or to provide a fully satisfactory remedy for, the invasion of
privacy that occurred when the IRS obtained the information on the tapes, a court does have
power to effectuate a partial remedy by ordering the Government to destroy or return any
and all copies it may have in its possession.
Id. at 13, 113 S.Ct. at 450. Accordingly, the Court held that the availability of this "partial
remedy"—the return or destruction of the tapes—was sufficient to constitute "effectual relief" and
thus was sufficient to prevent the case from being moot. Id. at 13, 113 S.Ct. at 450.
In both First American Bank and Lawhon, we held that the appellants' claims were moot
despite the fact that, as in Scientology, the orders appealed from compelled the production of
11
In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), this court adopted as
binding precedent all decisions of Unit B of the former Fifth Circuit handed down after
September 30, 1981.
tangible personal property. See First Am. Bank, 649 F.2d at 289 (finding appeal of district court's
order enforcing IRS summons moot, because bank records had been produced in compliance with
summons); Lawhon, 390 F.2d at 663 (finding appeal of district court's order compelling production
of books and records moot, because books and records had been produced in compliance with
order). The Supreme Court's decision in Scientology effectively overruled the holdings in both
cases, see Scientology, 506 U.S. at 12-13, 113 S.Ct. at 449-50, therefore calling into question our
decision in In re Federal Grand Jury Proceedings 89-10.
For several reasons, however, Scientology is distinguishable from the situation in In re
Federal Grand Jury Proceedings 89-10, and from the case sub judice. First, the summons at issue
in Scientology compelled the production of tangible physical property—audio tapes—not intangible
witness testimony. Given this distinction, there is no analogous effective relief that could be granted
to appellants in the instant case. Physical property can be retrieved; words, once uttered, cannot.
Second, even if we assume that the aforementioned distinction could be eliminated by
reasoning that a transcript of the attorney's grand jury testimony is the tangible equivalent12 of the
audio tapes in Scientology, there remains the distinction that Scientology had a possessory interest
in the audio tapes, whereas, in this case, appellants would not have a possessory interest in a
transcript of the attorney's testimony. Such possessory interest was crucial to the Court's holding.
See id. at 13-14, 113 S.Ct. at 450 ("Taxpayers have an obvious possessory interest in their records.
When the Government has obtained such materials as a result of an unlawful summons, that interest
12
The D.C. Circuit declined to recognize any such equivalency in Office of Thrift Supervision
v. Dobbs, 931 F.2d 956, 959-60 (D.C.Cir.1991), in which the court held an appeal of a subpoena
enforcement order moot, because the appellant—by testifying at a deposition—had complied
with the subpoena. In holding that the relief the appellant sought was not available, the court
explained that the "appellant cannot transform his testimony into a returnable record simply by
requesting this Court to seal the deposition transcript against future use." Id. at 959.
is violated and a court can effectuate relief by ordering the Government to return the records.").
Third, and perhaps most important, Scientology did not involve a grand jury proceeding. As
we discuss more fully infra, the independence of the grand jury and the secrecy of its proceedings
limit the availability of effective relief, further distinguishing this case from Scientology.13 For the
foregoing reasons, we conclude that Scientology did not overrule our decision in In re Federal
Grand Jury 89-10 and that Scientology's holding does not require that we hold in appellants' favor.
C.
We now turn to the second issue presented by Scientology, and the one relied on by
appellants in their brief: notwithstanding the fact that their attorney has testified, appellants contend
that their appeal is not moot because effective relief could be granted if they were to prevail on the
merits of their claim.14 Appellants suggest that if we determine that the district court's in camera
13
For these reasons, appellants' reliance on our decision in United States v. Florida Azalea
Specialists, 19 F.3d 620 (11th Cir.1994), which followed the holding in Scientology, is similarly
misplaced. Id. at 622 (finding appeal of order enforcing subpoena not moot—although, at time
of appeal, subpoena been complied with—because court could order the return or destruction of
documents produced in compliance with subpoena); see also Alabama Disabilities Advocacy
Program v. J.S. Tarwater Dev'l Ctr., 97 F.3d 492 (11th Cir.1996) (finding appeal not
moot—although order enjoining defendants to release records to plaintiff had already been
complied with—because court could order the return or destruction of records released in
compliance with order). Neither this court nor the Supreme Court has considered whether the
particular effective relief found to be available in Scientology—return or destruction of the
property produced in compliance with the summons—would be available in the grand jury
context.
14
In support of this contention, appellants cite to a footnote in Scientology, in which the Court
stated:
Petitioner also argues that a court can effectuate further relief by ordering the IRS
to refrain from any future use of the information that it has derived from the tapes.
Such an order would obviously go further towards returning the parties to the
status quo ante than merely requiring the IRS to return the tapes and all copies
thereof. However, as there is no guarantee that the IRS will in fact use the
information gleaned from the tapes, it could be argued that such an order would
be an impermissible advisory opinion.... Because we are concerned only with the
procedure denied them due process, we could remand the case to the district court with the following
instruction: that the court provide the in camera documents to appellants; that the court entertain
further submissions and argument on the applicability of the crime-fraud exception; and, if the court
finds the exception inapplicable, that the court:
(1) enjoin the grand jury from considering the testimony the attorney gave the grand jury
pending this appeal and the fruits thereof ("the attorney's testimony"); or,
(2) (if such injunction would not provide adequate relief) dismiss the grand jury.15
In the first instance, as discussed supra, any reliance on Scientology is misplaced because the
underlying facts are distinguishable. Additionally, as we explain infra, neither remedy appellants
question whether any relief can be ordered, we leave the "future use" question for
another day.
Scientology, 506 U.S. at 13 n. 6, 113 S.Ct. at 450 n. 6 (citations omitted). As discussed
infra, we find that the relief suggested by appellants, on the basis of this dicta, is not
available in the context of grand jury proceedings.
15
In suggesting these two remedies, appellants also rely on In re Grand Jury Subpoenas
(Stover), 40 F.3d 1096, 1100 n. 2 (10th Cir.1994), cert. denied sub nom. Nakamura v. United
States, 514 U.S. 1107, 115 S.Ct. 1957, 131 L.Ed.2d 849 (1995), in which the Tenth Circuit
applied Scientology in a grand jury context; the court found the appeal of a district court order
denying a motion to quash a subpoena duces tecum not moot—despite the fact that, after order
issued, the subpoena had been honored and the documents had been produced—because a court
could order the return or destruction of the documents. Id. The Tenth Circuit added, in dicta:
Obviously, the court could augment its order that the internal affairs files be
returned or destroyed. For example, the court might order that the grand jury
refrain from any use of the statements contained in the files. Moreover, if the
taint were serious, the court could discharge the grand jury and empanel a new
one. We do not suggest, at this point, that any such remedies necessarily would
be ordered, but simply note that such additional, or other recourse may be
available.
Id. (citations omitted). As we discuss infra, we find that these two remedies are not
available in the grand jury context, and we decline to follow the Tenth Circuit's dicta.
suggest16 would constitute effective relief.17 We discuss first an order enjoining the grand jury from
considering the attorney's testimony.
1.
To evaluate the availability of the injunctive relief appellants propose, we must consider
how injunctions are enforced. Injunctions are enforced through the district court's civil contempt
power. By positing a case in which the plaintiff seeks the enforcement of an injunction entered
against the defendant, we demonstrate the manner in which the injunction appellants propose would
be enforced:
[A] plaintiff seeking to obtain the defendant's compliance with the provisions of an
injunctive order move[s] the court to issue an order requiring the defendant to show cause
why he should not be held in contempt and sanctioned for his noncompliance. Newman v.
State of Alabama, 683 F.2d 1312, 1318 (11th Cir.1982), cert. denied, 460 U.S. 1083, 103
S.Ct. 1773, 76 L.Ed.2d 346 (1983). In his motion, the plaintiff cites the provision(s) of the
injunction he wishes to be enforced, alleges that the defendant has not complied with such
16
Appellants also suggest that we should direct the district court to order the relief they
propose, with no regard to whether the crime-fraud exception is applicable, if we determine that
the district court's in camera procedure denied them due process. The issuance of such relief,
they contend, would be necessary—in order to vindicate their due process rights—and
appropriate under Scientology, 506 U.S. at 13 n. 6, 113 S.Ct. at 450 n. 6, and In re Grand Jury
Subpoenas (Stover), 40 F.3d at 1100 n. 2. In our view, neither case counsels the granting of such
relief.
17
In In re Federal Grand Jury Proceedings 89-10, discussed supra, we did not explicitly
consider the relief the appellants seek here. Rather, we assumed that the only relief available
would be a post-indictment suppression of the use of the attorney's grand jury testimony, and the
fruits thereof, at trial. See In re Fed. Grand Jury Proceedings 89-10, 938 F.2d at 1580. As we
explained in that case, because an indictment might not issue, framing the factual basis for a
suppression order would be speculative, and, thus, issuing such relief would be foreclosed by
Article III. See id.
Unlike the relief considered in In re Federal Grand Jury Proceedings 89-10,
however, the relief appellants seek—enjoining the grand jury from considering the
attorney's testimony, or, dismissing the grand jury—would not be speculative. We know
that the attorney has testified; his testimony is before the grand jury. We thus consider
the relief appellants suggest because the availability of effective relief controls our
decision on whether this appeal is moot.
provision(s), and asks the court, on the basis of his representation, to order the defendant to
show cause why he should not be adjudged in contempt and sanctioned. If the court is
satisfied that the plaintiff has made out a case for an order to show cause, it issues the order
to show cause. The defendant, following receipt of the order, usually files a response, either
confessing his noncompliance or presenting an excuse, or "cause," therefor. The dispute is
thereafter resolved at a show cause hearing, with the issues to be decided at the hearing
framed by the show cause order and the defendant's response. At the hearing, if the plaintiff
establishes the defendant's noncompliance with the court's injunctive order and the defendant
presents no lawful excuse for his noncompliance, the court usually adjudges the defendant
in civil contempt and imposes a sanction that is likely to prompt the defendant's compliance
with the injunction.
Wyatt v. Rogers, 92 F.3d 1074, 1078 n. 8 (11th Cir.1996); see also Thomason v. Russell Corp., 132
F.3d 632, 634 n. 4 (11th Cir.1998); Blalock v. United States, 844 F.2d 1546, 1560 n. 21 (11th
Cir.1988) (Tjoflat, J., specially concurring) (demonstrating use of civil contempt power to enforce
hypothetical injunctive order). The traditional sanctions are a fine or imprisonment. See Wyatt, 92
F.3d at 1078 n. 8. The sanction is lifted when the defendant purges himself of contempt by
complying with the injunction.
With this enforcement mechanism in mind, we find two barriers to granting the relief
appellants propose. First, it is doubtful whether enjoining the grand jury from using the attorney's
testimony would be a permissible exercise of the court's supervisory power. Second, even if it
would be permissible for the court to intervene in this manner, an order enjoining the grand jury
would not provide effective relief because the order would, as a practical matter, be unenforceable.
a.
Historically, the grand jury has operated as an autonomous body, independent of the court
or prosecutors. See Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252(1960) (explaining that constitutional right to grand jury indictment presupposes "group of fellow
citizens acting independently of either prosecuting attorney or judge"); Costello v. United States,
350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956) (noting that grand jury "acquired an
independence in England free from control by the Crown or judges"). Although the grand jury must
rely on the court's process to summon the attendance of witnesses and to compel the testimony of
witnesses who refuse to testify, see United States v. Williams, 504 U.S. 36, 47, 112 S.Ct. 1735, 1743,
118 L.Ed.2d 352 (1992), the grand jury performs its investigative and deliberative functions
independently. See United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 773, 35 L.Ed.2d 67(1973) (explaining that grand jury "must be free to pursue its investigations unhindered by external
influence or supervision"). As the Supreme Court has stated:
Although the grand jury normally operates ... in the courthouse and under judicial auspices,
its institutional relationship with the Judicial Branch has traditionally been, so to speak, at
arm's length. Judges' direct involvement in the functioning of the grand jury has generally
been confined to the constitutive one of calling the grand jurors together and administering
their oaths of office.
Williams, 504 U.S. at 47, 112 S.Ct. at 1742; see also United States v. Calandra, 414 U.S. 338, 343,
94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974) ("No judge presides to monitor [grand jury] proceedings.
It deliberates in secret and may determine alone the course of its inquiry."); Blalock v. United
States, 844 F.2d 1546, 1549-50 (11th Cir.1988) (per curiam) (recognizing independence of grand
jury and declining to grant injunctive relief to prevent grand jury from returning an indictment
tainted by alleged governmental misconduct).
Recognizing the independence of the grand jury, the Court has explained that although the
grand jury "may not itself violate a valid privilege,"18 it may consider incompetent evidence,
Calandra, 414 U.S. at 346, 94 S.Ct. at 619, as well as evidence obtained in violation of the Fourth
18
For example, a witness may not be forced to answer the grand jury's questions in the face of
a valid invocation of the Fifth Amendment privilege against self-incrimination. See Calandra,
414 U.S. at 346, 94 S.Ct. at 619; see also Blalock, 844 F.2d at 1550 n. 5 (noting that, " "[a]
witness subpoenaed to testify or produce evidence before the grand jury may obtain judicial
review by seeking to quash the subpoena, or by refusing to answer specific questions' " (quoting
Sara Sun Beale & William C. Bryson, Grand Jury Law & Practice § 10:18 (1986))).
Amendment. See id. at 349-355, 94 S.Ct. at 620-23. Furthermore, Supreme Court precedent
suggests that a grand jury indictment obtained through the use of evidence previously obtained in
violation of the privilege against self-incrimination is nonetheless valid. See Williams, 504 U.S. at
49, 112 S.Ct. at 1743 (citing Calandra, 414 U.S. at 346, 94 S.Ct. at 619). In other words, as the
Court has stated, the validity of a grand jury indictment is "not affected by the character of the
evidence considered." Calandra, 414 U.S. at 344-45, 94 S.Ct. at 618. Accordingly, under Supreme
Court precedent, a grand jury indictment that is valid on its face may not be challenged on the
ground that the grand jury acted on the basis of inadequate or incompetent evidence or on the basis
of information obtained in violation of a defendant's Fifth Amendment privilege against
self-incrimination. See id. at 345, 94 S.Ct. at 618 (citing Costello, 350 U.S. at 359, 76 S.Ct. at 406,
and Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958)).
Because the grand jury may consider incompetent or unconstitutionally-obtained evidence,
and judicial supervision may not be sought to challenge an indictment issued on the basis thereof,
it does not seem permissible for a court to issue the injunction appellants propose, an order enjoining
the grand jury from considering the attorney's testimony, evidence that has already been disclosed
to the grand jury. Cf. Williams, 504 U.S. at 50, 112 S.Ct. at 1744 (explaining that "any power
federal courts may have to fashion, on their own initiative, rules of grand jury procedure is a very
limited one, not remotely comparable to the power [courts] maintain over their own proceedings");
United States v. DiBernardo, 775 F.2d 1470, 1478 (11th Cir.1985) (holding that it was not within
court's power to dismiss grand jury indictment when prosecutor failed to instruct grand jury to
disregard prejudicial evidence irrelevant to offense alleged in indictment and explaining practical
difficulty of judicially enforcing a prosecutorial duty to deliver such instructions).
b.
Even if it would be permissible for the court to issue the injunctive order appellants propose,
however, the order would not provide effective relief, because, as a practical matter, it would be
unenforceable. To ensure compliance with an order enjoining the grand jury from considering the
attorney's testimony, the court would have to question the grand jurors. Because "[n]o judge
presides to monitor [grand jury] proceedings," Calandra, 414 U.S. at 343, 94 S.Ct. at 617, the court
would not likely act on its own initiative. Rather, the questioning would commence after appellants
moved the court for an order to show cause why the grand jurors should not be held in civil
contempt and sanctioned for disobeying the court's injunction, and the court ordered the grand jurors
to show cause. How the appellants would know, and therefore could allege, that the grand jurors
were using the attorney's testimony is, at least, problematic because the grand jury "deliberates in
secret and may determine alone the course of its inquiry." Id., 414 U.S. at 342, 94 S.Ct. at 617; see
also Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d
156 (1979) (recognizing that "proper functioning of our grand jury system depends upon the secrecy
of grand jury proceedings"); United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct.
983, 986, 2 L.Ed.2d 1077 (1958) (noting "long-established policy that maintains the secrecy of the
grand jury proceedings in the federal courts").
Moreover, given the secrecy accorded to grand jury proceedings, the court might not be able
to question the grand jurors. Federal Rule of Criminal Procedure 6(e)(2) provides, in part: "A grand
juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes
recorded testimony, an attorney for the government ... shall not disclose matters occurring before
the grand jury...." Fed.R.Crim.P 6(e)(2). As the Advisory Committee's Notes explain, "This rule
continues the traditional practice of secrecy on the part[ ] of members of the grand jury...." Advisory
Committee's Notes on Fed.R.Crim.P. 6(e), 18 U.S.C.App., at 716 (1994); see also United States v.
Sells Eng'g Inc., 463 U.S. 418, 425, 103 S.Ct. 3133, 3138, 77 L.Ed.2d 743 (1983). This rule would
appear to preclude the district court from asking a grand juror about anything that may have taken
place before the grand jury. Furthermore, although Rule 6(e)(3) creates exceptions to this rule of
nondisclosure—for example, grand jury materials may be disclosed to "an attorney for the
government for use in the performance of such attorney's duty," Fed.R.Crim.P. 6(e)(3)(A)(i)—under
no circumstances may such disclosure include the grand jury's "deliberations and the vote of any
grand juror." Fed.R.Crim.P. 6(e)(3)(A); see also Advisory Committee's Notes on Fed.R.Crim.P.
6(e), 18 U.S.C.App., at 716 (quoted in Sells, 463 U.S. at 428-29, 103 S.Ct. at 3140).
Nonetheless, courts do not issue coercive orders unless they are prepared to enforce them
through their civil contempt power. Consequently, if, as appellants propose, the district court
enjoined the grand jurors from considering the attorney's testimony, the court would be inviting
appellants to monitor the grand jurors' activities—by inquiring of the grand jurors,19 and of the
witnesses appearing before them, as to what was transpiring—and to move the court for an order to
show cause in the event appellants reasonably believed that the grand jurors were ignoring the
court's order.
In light of the Rule 6(e)(2)-(3) prohibition against the disclosure of matters occurring before
the grand jury, including heightened protection of the grand jury's deliberations and the votes of its
19
Title 18 of the United States Code section 1503 makes it a felony to "corruptly, or by threats
or force, or by any threatening letter or communication, endeavor[ ] to influence, intimidate, or
impede any grand ... juror ... in the discharge of his duty ... or corruptly or by threats or force, or
by any threatening letter or communication, influence[ ], obstruct[ ], or impede[ ], or endeavor[ ]
to influence, obstruct, or impede, the due administration of justice...." 18 U.S.C. § 1503 (1994).
Section 1508 proscribes the knowing and willful recording, listening to, and observing of "the
proceedings of any grand ... jury ... while such jury is deliberating or voting...." 18 U.S.C. §
1508 (1994). Anyone monitoring the grand jury's activities would run the risk of violating these
statutes. Anyone who would induce, or attempt to induce, a grand juror to disregard the secrecy
requirement of Federal Rule of Criminal Procedure 6(e), would run the risk of a criminal
contempt citation under 18 U.S.C. § 401 (1994).
members, summoning the grand jurors for a show cause hearing would likely be a futile exercise.
Even if a show cause inquiry could be made without delving into matters protected by the rule, the
hearing would disrupt the grand jury proceedings. Such disruption would hinder the grand jury's
investigation and "frustrate the public's interest in the fair and expeditious administration of the
criminal laws." Calandra, 414 U.S. at 350, 94 S.Ct. at 621 (citation omitted). Such a result would
be intolerable. See id., 414 U.S. at 350, 94 S.Ct. at 621 (expressing "disinclination to allow litigious
interference with grand jury proceedings" in rejecting application of Fourth Amendment
exclusionary rule to grand jury proceedings).
Given the practical difficulty of knowing whether the grand jury was violating the court's
order, appellants might wait until an indictment issued and, rather than seeking an order to show
cause, move to dismiss the indictment. This motion would result in a hearing at which the district
court would determine whether the grand jurors complied with the order in issuing the indictment.
Making such a determination, however, would pose two insurmountable problems. First, the court
would be prohibited from examining the thought processes of the grand jurors by Federal Rule of
Evidence 606(b), which provides, in pertinent part:
Upon an inquiry into the validity of ... a[n] indictment, a juror may not testify as to any
matter or statement occurring during the course of the jury's deliberations or to the effect of
anything upon that or any other juror's mind or emotions as influencing the juror to assent
to or dissent from the ... indictment or concerning the juror's mental processes in connection
therewith.... Nor may a juror's affidavit or evidence of any statement by the juror concerning
a matter about which the juror would be precluded from testifying be received for these
purposes.
Fed.R.Evid. 606(b). In light of this prohibition, we cannot see how the court could determine, by
examining the grand jurors, whether the grand jury had used the attorney's testimony as a basis for
its indictment.
Second, given this prohibition, the court might attempt to determine whether the grand jurors
complied with the order by examining the court reporter's transcript of the grand jury proceedings;
the court might then make an assumption as to whether they did or did not comply, based on the
adequacy of the evidence other than the attorney's testimony. However, the court would be
prohibited from doing this under the precedent, discussed supra, holding that courts may not
consider challenges to facially valid indictments on the grounds that the grand jury acted on the basis
of inadequate, incompetent, or unconstitutionally-obtained evidence. See Calandra, 414 U.S. at 345,
94 S.Ct. at 618. In sum, a court could never properly determine whether a grand jury had complied
with an order enjoining the grand jurors from considering the attorney's testimony. Such an order,
therefore, would not provide effective relief to appellants, because it would be unenforceable.
2.
We now consider an order dismissing the grand jury. An order dismissing the grand jury
would not provide effective relief either. Such an order would not erase the attorney's testimony
from the mind of the United States Attorney and others having access to the testimony under Federal
Rule of Criminal Procedure 6(e)(3), nor would it prevent the government from submitting that
testimony, or the fruits thereof, to another grand jury. To avoid that result, the court would have to
enjoin the government—that is, its agents—from "using" the testimony in any way. Again, given
the mechanism for enforcing injunctions, an order enjoining the government from using the
attorney's testimony would not provide effective relief because the order would be unenforceable.
As with an injunction directed to the grand jurors, proceedings to enforce an injunction
against the government would commence with a motion to show cause filed by appellants—whom
the court, by entering the order, had invited to monitor the government's investigative activities.
What the appellants could allege in such a motion is anybody's guess. Given the practical
impossibility of knowing whether the United States Attorney (or a member of his staff) is "using"
information within the confines of his mind, the appellants necessarily would be forced to resort to
bald speculation. In any event, to show cause why he should not be held in contempt and
sanctioned, the United States Attorney would have to convince the court that he is "not using" the
information. Not only might proving such inaction be impossible, but in attempting to do so, the
United States Attorney might have to reveal the grand jury's and the government's investigatory
plans—again frustrating the public's interest in the expeditious administration of the criminal laws.
Cf. Blalock v. United States, 844 F.2d 1546, 1560 n. 21 (11th Cir.1988) (Tjoflat, J., specially
concurring) (recognizing same problems—breaching secrecy of and hindering grand jury's
investigation—with enforcing, through court's civil contempt power, a hypothetical order enjoining
United States Attorney from wrongfully disclosing grand jury matters); see also Beale & Bryson,
2 Grand Jury Practice & Procedure, § 10:18, at 63 (noting that preservation of grand jury secrecy
"contributes to the courts' reluctance to formulate standards for grand jury procedure and practice
that could only be implemented by a review process that would breach grand jury secrecy").
Thus, as a practical matter, the injunctive orders suggested by appellants would not provide
effective relief because they would be unenforceable. It is an implicit recognition of the
unavailability of the sort of injunctive relief appellants propose that the Supreme Court has held that,
once the grand jury has received evidence that the putative defendant contends was illegally
obtained, or has heard testimony that the putative defendant contends was protected by privilege,
the dismissal of the ensuing indictment is not an appropriate remedy. See Calandra, 414 U.S. at
344-55, 94 S.Ct. at 618-23. Rather, the appropriate remedy is a post-indictment motion in limine
to suppress the use of the evidence or testimony at trial. See In re Grand Jury Proceedings
(Klayman), 760 F.2d at 1491-92 ("[A]lthough the dispute may arise again, it is not likely to escape
review, as the parties can file pretrial motions in limine ....") (cited in In re Fed. Grand Jury
Proceedings 89-10, 938 F.2d at 1580 (finding appeal of order compelling attorney to testify moot
because attorney had testified in compliance with order and holding that attorney-client privilege
issue would not escape review if the government sought to use the testimony in a future trial)).
III.
In sum, given that the attorney has testified before the grand jury, there is no effective relief
that can be granted to appellants; there is nothing that we can appropriately do at this point to
prevent him from testifying or to remedy the district court's allegedly wrongful denial of appellants'
motion to quash. This appeal is therefore moot. Accordingly, we DISMISS the appeal and instruct
the district court, on receipt of our mandate, to dismiss the case.
SO ORDERED.