Grand Jury Proceedings, In Re:

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-2322
IN RE GRAND JURY PROCEEDINGS (No. 93-2)
JOHN ROE, INC.,
JOHN ROE,
Movants-Appellants,
versus
UNITED STATES OF AMERICA,
Appellee.
Appeal from the United States District Court
for the Middle District of Florida
(June 12, 1998)
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 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.
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.
2
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 the crime-fraud exception to the
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.
3
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
affadavits.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
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. 11, 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.
4
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 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.
5
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
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 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
6
first determining whether this appeal is moot. We therefore
consider that issue.9
exception did not violate due process); see also In re Grand Jury
Proceedings (Doe), 867 F.2d 539, 540-41 (9th Cir. 1988) (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 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.
7
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,
8
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
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
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. 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.
9
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 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
11
In Stein v. Reynolds Sec. 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).
10
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
tangible personal property. See First Am. Bank, 649 F.2d at 289
11
(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
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.
12
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 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
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.
13
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 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
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 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.
14
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 suggest16 would constitute effective relief.17
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.
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
15
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
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.
16
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
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.
17
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
18
“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 Amendment. See id.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))).
19
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 1473 (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 U.S. 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
20
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
21
least, problematic because the grand jury “deliberates in secret
and may determine alone the course of its inquiry.” Id., 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)(3)(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
22
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
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).
23
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 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., 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
24
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
25
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
26
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
27
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.
28
SO ORDERED.
29