In re: Grand Jury v.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: Grand Jury, JOHN DOE No. 
G.J. 2005-2
UNITED STATES OF AMERICA,
Appellant,  No. 06-4612
v.
UNDER SEAL,
Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(2:06ms84)
Argued: November 30, 2006
Decided: February 22, 2007
Before WIDENER and WILKINSON, Circuit Judges,
and David A. FABER, Chief United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Widener and Judge Faber joined.
COUNSEL
ARGUED: Grace Y. Chung Becker, UNITED STATES DEPART-
MENT OF JUSTICE, Civil Rights Division, Washington, D.C., for
2 In Re: Grand Jury, JOHN DOE No. G.J. 2005-2
Appellant. Christopher Scott Boynton, CITY ATTORNEY’S
OFFICE, Virginia Beach, Virginia, for Appellee. ON BRIEF: Wan
J. Kim, Assistant Attorney General, Dennis J. Dimsey, Karl N. Gel-
lert, UNITED STATES DEPARTMENT OF JUSTICE, Civil Rights
Division, Washington, D.C., for Appellant. Leslie L. Lilley, Mark D.
Stiles, Andrew B. Pittman, CITY ATTORNEY’S OFFICE, Virginia
Beach, Virginia, for Appellee.
OPINION
WILKINSON, Circuit Judge:
This appeal arises from an order by the district court quashing a
subpoena duces tecum. The subpoena was issued by a federal grand
jury to a City Police Department ("the Department") to obtain the
records of the Department’s internal investigation into a complaint
filed against an officer. Given the particular circumstances of this
case, the district court did not abuse its discretion in quashing the sub-
poena, and we now affirm its judgment.1
I.
An individual arrested by the City Police Department filed a com-
plaint with the Department, alleging that a particular officer used
excessive force against him in the course of arrest. The complaint
resulted in an investigation by the Department’s internal affairs office.
During the internal investigation, Department officials interviewed
various officers, including the officer identified in the arrested indi-
vidual’s complaint.
It is Department policy that officers are required to comply fully
with internal investigations as a condition of their employment. False
testimony or other failure to comply may result in disciplinary action
or dismissal. Officers who are questioned as part of an internal inves-
1
In the interest of protecting the confidentiality of the grand jury pro-
ceedings, see Fed. R. Crim. P. 6(e), we refrain from referring to involved
parties by their proper names.
In Re: Grand Jury, JOHN DOE No. G.J. 2005-2 3
tigation are notified in writing that their responses may not be used
against them in criminal proceedings. The Department’s general writ-
ten policy on internal investigations reiterates this guarantee and fur-
ther states that material relating to internal investigations will be
treated as confidential. The policy goes on to state, "This is not to
imply that such files are not discoverable in legal proceedings."
The United States Attorney’s Office and the Criminal Section of
the Civil Rights Division of the United States Department of Justice
undertook an investigation of the same incident to determine whether
it constituted a civil rights violation under 18 U.S.C. § 242(2000)(deprivation of rights under color of law). In connection with
this investigation and at the United States’ behest, a federal grand jury
issued a subpoena duces tecum requiring the production of documents
relating to the Department’s internal investigation.
The City moved to quash the subpoena, claiming that compliance
would be "unreasonable" pursuant to Federal Rule of Criminal Proce-
dure 17(c) for two reasons. First, the City argued that compliance
would destroy the confidentiality of the internal investigation and
would thus severely undermine the Department’s ability to conduct
such investigations effectively. Second, the City contended that com-
pliance would be inconsistent with the interviewed officers’ Fifth
Amendment rights against self-incrimination.
The United States responded that the interviewees enjoyed no rea-
sonable expectation of protection against a subpoena and that any
interest in confidentiality was satisfied by the fact that grand jury pro-
ceedings are secret. The United States further argued that compliance
held no Fifth Amendment risks because of two safeguards against the
use of self-incriminating testimony. First, all internal investigation
materials would be screened by a "Garrity review team," so named
for Garrity v. New Jersey, 385 U.S. 493, 500 (1967), which prohib-
ited the use in criminal proceedings of governmental employees’ self-
incriminating statements obtained under threat of termination. The
Garrity review team would screen the materials before they were
given to the prosecutors and redact any potentially self-incriminating
statements, as well as any material that relied upon such statements.
The Garrity team members would play no role in any subsequent
4 In Re: Grand Jury, JOHN DOE No. G.J. 2005-2
investigation or prosecution, and the material redacted by the team
would never be seen by the prosecutors, much less by the grand jury.
Second, if an officer were to be indicted and believed that his own
privileged statements were used to indict him, he would be entitled
to a Kastigar hearing, at which the government would bear the burden
of "prov[ing] that the evidence it proposes to use is derived from a
legitimate source wholly independent of the compelled testimony."
Kastigar v. United States, 406 U.S. 441, 460 (1972).
The United States furthermore asserted its own interest in obtaining
the information and the grand jury’s power to subpoena it. At the
hearing on the City’s motion to quash, the government noted that any
false statements by officers in the course of the internal investigation
might form the basis of an independent charge of obstruction of jus-
tice. The government also asserted that it required the internal investi-
gation materials in order to "close . . . the file" on the complaint.
Counsel for the United States stated there was "no expectation that
[the case] will turn into a prosecutable offense" and that it was "99.9
percent certain" that the civil rights complaint was "a bunch of balo-
ney."
The district court granted the City’s motion to quash the subpoena.
The court found that both the City and the United States asserted
highly significant law enforcement interests with respect to the
"‘policing’ of the police." United States v. Doe, 434 F. Supp. 2d 377,
381 (E.D. Va. 2006). The court found that the City established that
compliance would pose substantial risks for confidentiality and Fifth
Amendment interests, while the United States for its part could easily
obtain the desired information by subpoenaing the interviewed offi-
cers directly, thus avoiding the risks of self-incrimination, the com-
plexities of the Garrity review procedure, and the potential
destruction of the Department’s ability to investigate itself. While not-
ing that the interests of the grand jury would as a general matter pre-
vail, the court held that, in this particular instance, the City’s asserted
interests outweighed those of the United States, and thus compliance
with the subpoena would be unreasonable under Rule 17(c). The
United States appeals.
This court has jurisdiction to review a district court order quashing
a subpoena pursuant to 18 U.S.C. § 3731 (Supp. 2002). See In re
In Re: Grand Jury, JOHN DOE No. G.J. 2005-2 5
Grand Jury Subpoena, 175 F.3d 332, 336 (4th Cir. 1999); United
States v. (Under Seal), 745 F.2d 834, 835 n.1 (4th Cir. 1984).
We review the grant of a motion to quash a subpoena under Rule
17(c) for abuse of discretion. See United States v. Fowler, 932 F.2d
306, 311-12 (4th Cir. 1991); In re Grand Jury Subpoena: Subpoena
Duces Tecum, 829 F.2d 1291, 1296 (4th Cir. 1987). "A district court
has abused its discretion if its decision is guided by erroneous legal
principles or rests upon a clearly erroneous factual finding." Morris
v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006) (internal
quotation marks omitted).
II.
The grand jury is a unique institution within the criminal justice
system. Belonging to no branch of government, the grand jury is a
"constitutional fixture in its own right . . . serving as a kind of buffer
or referee between the Government and the people." United States v.
Williams, 504 U.S. 36, 47 (1992) (internal quotation marks omitted).
Its mission is to "inquire into all information that might possibly bear
on its investigation until it has identified an offense or has satisfied
itself that none has occurred." United States v. R. Enters., Inc., 498
U.S. 292, 297 (1991).
Although the grand jury operates with great independence, "the
powers of the grand jury are not unlimited and are subject to the
supervision of a judge." Branzburg v. Hayes, 408 U.S. 665, 688
(1972). One such judicial limitation arises from Federal Rule of Crim-
inal Procedure 17(c)(2), which provides that a district judge may
quash or modify a subpoena duces tecum "if compliance would be
unreasonable or oppressive."
Courts have recognized various ways in which a subpoena may be
unreasonable or oppressive under Rule 17(c). Rule 17(c) offers a
vehicle for a subpoenaed party to assert a constitutional, statutory, or
common-law privilege. See Branzburg, 408 U.S. at 688; see, e.g., In
re Grand Jury Proceedings, 45 F.3d 343, 345 (9th Cir. 1995); In re
Grand Jury Proceedings: Subpoena Duces Tecum, 827 F.2d 301, 305
(8th Cir. 1987). In the absence of such a privilege, a subpoena may
still be unreasonable or oppressive under Rule 17(c) if it is irrelevant,
6 In Re: Grand Jury, JOHN DOE No. G.J. 2005-2
see R. Enters., 498 U.S. at 301; abusive or harassing, see In re Grand
Jury Subpoena, 175 F.3d at 340; United States v. (Under Seal), 714
F.2d 347, 350 (4th Cir. 1983); overly vague, see United States v. Loe,
248 F.3d 449, 466 (5th Cir. 2001); or excessively broad, see In re
Grand Jury Proceedings, 601 F.2d 162, 165 (5th Cir. 1979). Addi-
tionally, some courts have recognized that Rule 17(c) enables district
courts to quash a subpoena that intrudes gravely on significant inter-
ests outside of the scope of a recognized privilege, if compliance is
likely to "entail consequences more serious than even severe inconve-
niences occasioned by irrelevant or overbroad requests for records."
In re Grand Jury Matters, 751 F.2d 13, 18 (1st Cir. 1984); see, e.g.,
United States v. Bergeson, 425 F.3d 1221, 1222-23 (9th Cir. 2005)
(quashing subpoena seeking non-privileged information about
attorney-client relationship).
In this case, the City argued that compliance was unreasonable
because it would burden the City’s significant interests in preserving
the confidentiality of its investigations and forestalling the potential
violation of officers’ Fifth Amendment rights. As the party seeking
to avoid compliance with the subpoena under Rule 17(c), the City
bore the burden of demonstrating unreasonableness. See R. Enters.,
498 U.S. at 300-01; In re Grand Jury Subpoena, 920 F.2d 235, 244
(4th Cir. 1990).
To determine whether the City met this burden, the district court
balanced its asserted interests against the United States’ interests in
enforcing the subpoena. This balancing took place with an explicit
recognition that a presumption of regularity attaches to grand jury
subpoenas; in fact, the district court acknowledged that in most cases
the interests in favor of enforcing the subpoena would prevail. Thus
the balancing undertaken by the district court did not constitute an
abuse of discretion. See In re Grand Jury Proceedings No. 92-4, 42
F.3d 876, 880 (4th Cir. 1994) (balancing interests implicated in grand
jury subpoena of attorney fee records); In re Grand Jury 87-3 Sub-
poena Duces Tecum, 955 F.2d 229, 234 (4th Cir. 1992) (balancing
government’s needs against possible constitutional infringement by
grand jury subpoena); see also R. Enters., 498 U.S. at 303 (Stevens,
J., concurring in part and concurring in the judgment) ("[Rule 17(c)]
requires the district court to balance the burden of compliance, on the
In Re: Grand Jury, JOHN DOE No. G.J. 2005-2 7
one hand, against the governmental interest in obtaining the docu-
ments on the other.").
Nor did the district court abuse its discretion in concluding that, in
this instance, the City’s interests outweighed those asserted by the
United States. As the Supreme Court has stated with regard to Rule
17(c), "what is reasonable depends on the context." R. Enters., 498
U.S. at 299 (internal quotation marks omitted). "The factors the dis-
trict court must consider under Rule 17(c)(2) . . . cannot sensibly be
converted into a mechanical rule enabling an escape from case-by-
case judgment." Bergeson, 425 F.3d at 1225. We have explicitly left
such case-by-case analysis to the district court’s "considered discre-
tion." In re Grand Jury Proceedings No. 92-4, 42 F.3d at 880. The
district court acted within its discretion in assessing the factors at
issue here.
A.
We address the City’s interests initially. First, the district court per-
missibly took cognizance of the City’s very real concern that the
Police Department preserve its ability to police itself by maintaining
the confidentiality of its investigations. The internal investigation
mechanism serves the same purpose as a criminal investigation by the
United States Attorney’s Office or Department of Justice: to uncover,
and ultimately to deter, civil rights violations and other abuses. In
many instances, internal investigations may offer the most effective
way to pursue those goals. A police department is able to respond to
a complaint quickly, while witnesses are still available and memories
are still fresh. Perhaps most importantly, a strong and visible internal
investigations office is in a unique position to deter misconduct in the
first place.
Yet such investigations face an uphill battle due to the so-called
"blue wall," the tendency of law enforcement officers to place solidar-
ity above all else and to be less than fully cooperative with investiga-
tions of fellow officers. "Officers who report misconduct are
ostracized and harassed; become targets of complaints and even phys-
ical threats; and are made to fear that they will be left alone on the
streets in a time of crisis." Report of the Commission to Investigate
Allegations of Police Corruption and the Anti-Corruption Procedures
8 In Re: Grand Jury, JOHN DOE No. G.J. 2005-2
of the Police Department 53 (1994). In such a setting, the confidenti-
ality of internal investigations may be not only desirable but essential.
The district court was permitted to recognize that handing the state-
ments over to an outside party or agency, including one involved in
criminal investigations, would be perceived by cooperating officers as
a serious compromise of confidentiality, notwithstanding the provi-
sions of Federal Rule of Criminal Procedure 6(e).
The United States contends that the subpoena does not disrupt an
expectation of confidentiality, because Departmental policy states that
its confidentiality safeguards are "not to imply that [internal investiga-
tion materials] are not discoverable in legal proceedings." This dis-
claimer does not change the fact that the policy as a whole reflects the
Department’s interest in maintaining confidentiality to the fullest
extent possible, an understandable concern given the policy’s impor-
tance to the lawful functioning of law enforcement. The disclaimer
certainly does not foreclose any recognition of the importance of con-
fidentiality by the district court.
Moreover, in this case, where the ultimate interests of both federal
and local law enforcement are in exposing and deterring police mis-
conduct; where compliance with the subpoena arguably inflicts a last-
ing harm on the local entity’s ability to pursue that goal; and where
the federal grand jury has other means to achieve this goal without co-
opting the work of the local entity, it is not unreasonable to conclude
that principles of federalism require some modest recognition of a
local government’s efforts which the record leaves no reason to
believe were pursued in other than good faith. See Matter of Special
April 1977 Grand Jury, 581 F.2d 589, 593 (7th Cir. 1978) (per
curiam) (federal subpoena of materials from state attorney general’s
office enforceable where compliance would not impair integrity of the
state or its ability to function effectively). For these reasons, the dis-
trict court did not err in recognizing the City’s interest in fostering the
efficacy of internal investigations by protecting their confidentiality.
B.
Second, the district court recognized the City’s concern about the
potential for self-incrimination involved in releasing the internal
investigation materials. Garrity provides that if a governmental
In Re: Grand Jury, JOHN DOE No. G.J. 2005-2 9
employee is compelled to incriminate himself on pain of dismissal or
other penalty, the state cannot use his statements against him in a sub-
sequent criminal prosecution. Garrity, 385 U.S. at 500; see Wiley v.
Doory, 14 F.3d 993, 996 (4th Cir. 1994). Thus any self-incriminating
information provided by officers in the course of the internal investi-
gation may not be used to prosecute them.
The United States argues that the subpoena does not threaten this
guarantee, because the Garrity review process described above pre-
vents disclosure of self-incriminating information at the outset, and a
Kastigar hearing can remedy any reliance on such information after
the fact. The United States notes that the Garrity review process has
been approved by the Ninth and Tenth Circuits in cases involving fed-
eral grand jury subpoenas of law enforcement officers’ testimony in
administrative hearings. See In re Grand Jury Subpoena, 75 F.3d 446,
448 (9th Cir. 1996); In re Grand Jury Subpoenas, 40 F.3d 1096, 1103
(10th Cir. 1994).
We have no reason to disapprove of the Garrity review process,
cumbersome though it may be, and we have no reason to express an
opinion on its suitability in all instances. We simply hold that the
potential availability of a Garrity review team is insufficient to estab-
lish abuse of discretion on the part of the district court in this case.
We note moreover that the district court took the City’s two
interests—in preserving confidentiality and forestalling possible self-
incrimination problems—together, and weighed those interests as a
whole against those of the United States. This circumstance distin-
guishes this case from the Ninth and Tenth Circuit cases relied upon
by the United States, which involved assertions of officers’ Fifth
Amendment rights but not the confidentiality interests of their depart-
ments. See In re Grand Jury Subpoena, 75 F.3d at 447 (appellant
police officers asserted Fifth Amendment interest); In re Grand Jury
Subpoenas, 40 F.3d at 1098-99 (same); see also In re Grand Jury
Proceedings, 45 F.3d at 345-46 (same). In the absence of the City’s
assertion of an interest in the confidentiality of its own investigative
procedures, this may well have been a different case.
C.
On the other side of the ledger, the district court found the United
States’ interest in obtaining this particular information, by the specific
10 In Re: Grand Jury, JOHN DOE No. G.J. 2005-2
method of a subpoena duces tecum, to be less substantial. The court
noted that the federal grand jury could obtain the information by sub-
poenaing the interviewed officers directly. The district court went too
far in this respect, because the existence of an alternative means of
obtaining information is insufficient to render a subpoena unreason-
able or subpoenaed material irrelevant to a grand jury investigation.
See In re Grand Jury Proceedings No. 92-4, 42 F.3d at 879.
The district court, however, was not required to ignore the fact that
counsel for the United States repeatedly suggested that the informa-
tion sought was of negligible value to the government. Counsel stated
that the government merely required the internal investigation materi-
als in order to "close . . . the file," as the government attorneys were
"99.9 percent certain" that the complaint was "a bunch of baloney"
and there was "no expectation that it [would] turn into a prosecutable
offense."
We recognize, of course, that the government has an interest in
ascertaining whether a crime has been committed and that in many
instances it will be unable to do so until the grand jury has undertaken
its own investigation. This interest remains valid, even where, as here,
the subpoena is not directed against an individual but against a local
entity with an identical interest in investigating whether misconduct
has occurred. This being the case, we do not think that the district
court was in any sense compelled to quash this subpoena, only that
it did not abuse its discretion by taking into account the government’s
representations.
The United States now argues that the court should ignore its "ex-
tremely frank" statements regarding the subpoena and the underlying
investigation. But the court is under no such obligation. The govern-
ment obviously made these statements in the hope that they would
influence the district court in its favor, and thus it is in a precarious
position to complain that the opposite occurred. The district court was
within its discretion to take cognizance of the government’s own
assessment of its interest in the information.
The court also did not abuse its discretion in crediting these
repeated statements over the government’s suggestion that the sub-
poena might uncover evidence that officers lied during the internal
In Re: Grand Jury, JOHN DOE No. G.J. 2005-2 11
investigation and thus provide a basis for an obstruction of justice
charge. We certainly recognize that cover-ups and otherwise inade-
quate procedures on the part of state and local law enforcement enti-
ties are a real danger, and that the Department of Justice or the United
States Attorney’s Office may at times need to investigate not only
officer misconduct, but the very procedures by which such miscon-
duct is dealt with at the state and local level. But while fully recogniz-
ing these concerns as a general matter, we are confident that the
district court properly assessed the government’s interest in this case
in accordance with the government’s own characterization.
III.
We thus conclude on these facts that the district court did not abuse
its discretion in finding that the City had established that compliance
with the subpoena would be unreasonable under Rule 17(c). A rever-
sal on this record would be a declaration that state and local investiga-
tions of possible police misconduct were seldom worthy of federal
respect.
The judgment of the district court is hereby
AFFIRMED.