In Re Grand Jury Proceedings. Appeal of Jacqueline Schofield ( 1975 )

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This case raises questions concerning the district court’s application of our holding in In re Grand Jury Proceedings, 486 F.2d 85 (3d Cir., 1973) (Schofield I). Because we conclude that the requirements of Schofield I have been met, the district court order is affirmed.¹

I.

In Schofield I this court soundly rejected any contention that the district court should “rubber stamp” petitions for the enforcement of grand jury subpoenas. Instead we held that the trial court would first be required to satisfy itself of the propriety of the subpoena. Under our supervisory powers we required the party seeking enforcement of a grand jury subpoena to make some minimal showing by affidavit of the existence of a proper purpose.² We suggested three tests for determining whether the required showing had been made.

. [W]e think it reasonable that the Government be required to make some preliminary showing by affidavit that each item is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose. 486 F.2d at 93.

Despite the fact that the burden is generally on the witness to show abuse of the grand jury process, Schofield I requires the government to present affidavits in every case irrespective of whether the witness has challenged the propriety of the subpoena. This broad rule is designed to prevent abuse of the grand jury process by requiring a minimum disclosure of the grand jury’s purpose in every case.

Schofield I emphasizes that where the district court is not satisfied with the affidavits presented by the government, whether because the matters set forth challenge the court’s credibility or because the witness has made some colorable challenge to the affidavits, the court can require something more.

The district judge is vested with considerable discretion in determining whether additional proceedings are warranted. Various avenues of inquiry are open to a court which questions the sufficiency of the affidavits, among them discovery, in camera inspection, additional affidavits and a hearing. If it was not made clear in Schofield I, we emphasize now that the decision to require additional investigation is committed to the sound discretion of the district court. In Schofield I we stated:

the court must in deciding that request [for additional proceedings,] weigh the quite limited scope of an inquiry into abuse of the subpoena process, and the potential for delay, against any need for additional information which might cast doubt upon the accuracy of the Government’s representations. 486 F.2d at 93.

We will not disturb a decision to deny additional review unless we find that the district court’s “weighing” was an abuse of discretion.

Our decision in Schofield I was made against the backdrop of a long line of Supreme Court decisions on the subpoena enforcement powers of grand juries.³ Despite the fact that those cases deal with constitutional power as opposed to Schofield I’s reliance on the court’s supervisory powers, we are not inclined to interpret Schofield I as a major deviation from the thrust of these Supreme Court decisions. Indeed, the court in Schofield I concludes that United States v. Dionisio, 410 U.S. 1, 12, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) and Branzburg v. Hayes, 408 U.S. 665, 709-710, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) “explicitly reiterating . . . the power of the district courts to control the use of grand jury subpoenas”. 486 F.2d at 89. In bottoming its analysis in Dionisio and Branzburg; Schofield I makes clear that no radical departure from these cases is intended. Implicit in Schofield I therefore is a realization that the grand jury must be given broad investigative powers. With the Court in Dionisio, we conclude that any holding that would “saddle” a grand jury with minitrials would impede its investigative duty. 410 U.S. at 17, 93 S.Ct. 764. Schofield I clearly did not intend to impede the grand jury process by requiring hearings in every case. It merely restated a district court’s authority to deal individually with the facts of each subpoena. No Supreme Court case has implied that an enforcing judge is without power to deal with a subpoena judged to be abusive or improper. Our holding in Schofield I, that a district court is vested with discretion to require additional proceedings, is merely an implementation of that power to deal with questions of abuse based on the facts of each subpoena.

Our holding in Schofield I did not require a showing of reasonableness, it did not require any determination of probable cause and it clearly did not require a hearing in every case.

What Schofield I did require, however, was a minimum showing by affidavit in every case that each item sought was (1) relevant to an investigation, (2) properly within the grand jury's jurisdiction, and (3) not sought primarily for another purpose.

None of the Supreme Court cases deal with the precise issue raised in Schofield I. Nevertheless, we feel that the three-pronged showing requirement of that case is perfectly compatible with Supreme Court decisions. It should be noted that in United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99; United States v. Dionisio, supra and Branzburg v. Hayes, supra, affidavits were supplied to the district court. The affidavit requirement was never addressed in those cases. But under our supervisory power over the grand jury and over the district court’s enforcement of subpoenas, supra n. 2, we feel empowered to specify the particular way in which relevancy and proper purpose of a grand jury investigation shall be shown in this Circuit.

II.

The first subpoena relevant to this case was issued in April of 1973. Mrs. Schofield was directed to permit photographs, fingerprints and handwriting exemplars to be taken. She refused to comply. This court vacated the district court’s order adjudging the witness in civil contempt in Schofield I. Upon remand, the subpoena was not renewed.

In January of 1974, Mrs. Schofield was subpoenaed to testify before the grand jury. After being granted immunity, she did in fact testify for seven hours.

The present appeal deals with a subpoena issued in July of 1974 which again directed the witness to permit photographs, fingerprints and handwriting exemplars to be taken. When Mrs. Scho-field refused to comply, the United States Attorney’s office moved to enforce the subpoena in the district court. Appellant filed an answer to the enforcement motion averring, among other things, that the affidavit was insufficiently detailed to determine relevancy and that the government already had in its possession a photograph and a handwritten letter. The court nevertheless denied further discovery and ordered enforcement of the subpoena. Mrs. Scho-field refused to comply and was ultimately adjudged in civil contempt.

In a detailed opinion the district court concluded that the government affidavit in support of the enforcement motion had in fact complied with the Schofield I three-pronged affidavit requirement. We agree. The affidavit states:

Walter S. Batty, Jr., Assistant United States Attorney in and for the Eastern District of Pennsylvania, states as follows:

1. The January 25, 1974 Grand Jury for the Eastern District of Pennsylvania is now conducting investigations of various alleged illegal activities in the said District; said investigations involve possible violations of federal criminal statutes, including 18 U.S.C. §§ 1621 [perjury], 1623 [giving false declarations]. Jacqueline Scho-field has been subpoenaed by the said Grand Jury and has been fully advised that she is a potential defendant in its investigation.

2. It is essential and necessary to the said Grand Jury investigation that Jacqueline Schofield furnish before and to the Grand Jury, or to any duly appointed agent of the said Grand Jury, exemplars of her handwriting and/or handprinting, and to permit that her photograph and fingerprints be taken. Such items will be used solely as a standard of comparison to determine whether or not the witness uttered any forged, falsely made, altered or counterfeited checks. (Appendix at 38.)

While the information supplied was scant, it was not insufficient as a matter of law. The affidavit gave the trial judge some basis for determining that the three-pronged test of Schofield I had been met. Considering the slender information supplied and Mrs. Schofield’s allegation that the government already had the information it sought in the affidavit, the district court could have required something more of the government.^3a We state again, however, that we will not review the trial court’s refusal to grant additional inquiry except where we find the refusal to be abuse of discretion.

The government affidavits state that the grand jury was investigating violations of criminal statutes and that the witness was a potential defendant, thus clearly satisfying the requirement that the items be relevant⁴ to the grand jury investigation and properly within the grand jury’s jurisdiction. The last requirement of Schofield I, that the item not be sought for another purpose, is less clearly laid out in the affidavit but sufficiently met in the district judge’s and our view. Paragraph two of the affidavit states that the material will be used solely as a standard of comparison to determine whether the witness had committed forgery. The district judge knew that the grand jury was investigating perjury and that the witness had been granted immunity from prosecution for forgery during her seven hours of grand jury testimony. A viable conclusion is that the exemplars were relevant to determine whether Mrs. Schofield perjured herself during her earlier testimony before the grand jury.

Having satisfied the minimum showing requirements of Schofield I, we can only disturb the failure to require more if an abuse of discretion is shown. Although Mrs. Schofield contested the need for the exemplars, alleging that the government already had copies of her photograph and handwriting, the district judge satisfactorily explained his refusal to require more. Because of the limited scope of inquiry into abuse of the grand jury process, the court concluded that there had been no charge of harassment or unreasonableness and that additional review was, therefore, unnecessary. The slight burden of compliance did not warrant further inquiry into the grand jury’s reasons for requesting the information. We find no abuse of discretion and consequently hold meritless appellant’s contention that additional proceedings are required in this case.

III.

Since Schofield I has been met in all respects, the district court’s order of civil contempt will be affirmed.

1 . United States of America v. Grand Jury Investigation Jacqueline Schofield, Witness, No. 74-197 (E.D.Pa., Nov. 15, 1974).

2 . Our supervisory power over grand juries is derived from several sources. Under 18 U.S.C. § 3331 and F.R.Cr.P. 6(a) a district court is given power to call a grand jury into existence; under F.R.Cr.P. 17(a), and 28 U.S.C. § 1826(a) respectively, the district court is given the power to issue and the duty to enforce grand jury subpoenas.

3 . The investigative powers of the grand jury are very broad. In United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974), Justice Powell states:

The scope of the grand jury’s powers reflects its special role in insuring fair and effective law enforcement. A grand jury proceeding is not an adversary hearing in which the guilt or innocence of the accused is adjudicated. Rather, it is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person. The grand jury’s investigative power must be broad if its public responsibility is adequately to be discharged.

In Calandra the court held that a witness may not refuse to answer questions based on evidence derived from an illegal search and seizure. See United States v. Dionisio, 410 U.S. 1, 11-17, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (the grand jury subpoena is not a seizure under the Fourth Amendment and therefore need not be reasonable as required by the Fourth Amendment); Branzburg v. Hayes, 408 U.S. 665, 687-690, 92 S.Ct. 2646, 33 L.Ed.2d 626 (a newsman may not refuse under the First Amendment to testify about materials derived from confidential sources). Kastigar v. United States, 406 U.S. 441, 443, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1973).

3a . The district court opinion did not address the witness’ claim that the government already had exemplars. The dissent would, therefore, remand for consideration of this claim on the ground that in failing to treat it, the district court failed to exercise its discretion. Aside from the fact that there is nothing in the record indicating that the district court did not consider this point, we cannot agree that the court’s opinion must address each of the witness’ claims. We are dealing with the narrow decision of whether or not to grant additional proceedings. To require a district court to rebut each colorable contention raised by a witness, as Judge Aldisert’s dissenting opinion does, would facilitate delay in grand jury proceedings.

4 . We cite an appropriate definition of relevancy:

Relevancy, in the context of a Grand Jury proceeding is not a probative relevancy, for it cannot be known in advance whether the document produced will actually advance the investigation. It is rather a relevancy to the subject matter of the investigation.

In re Morgan, 377 F.Supp. 281, 285 (S.D.N.Y. 1974).