Mediaboss Marketing

Since COVID-19 began to spread across the United States, federal grand juries in districts around the country have stopped meeting, but prosecutors have continued to issue grand jury subpoenas, including in high-profile investigations. Without sitting grand juries, however, do prosecutors still retain the subpoena power? The answer is unclear, and anyone who receives a subpoena these days should take a close look at its validity.

Going back to basics, a typical federal grand jury subpoena for documents commands its recipient to appear in front of the grand jury on a specific date and timethe return dateand to bring with him or her certain specified documents. Notwithstanding that command, however, subpoenas often state that a personal appearance is not required if the requested records are delivered to a particular government agent any time before the return date.

Although subpoenas are issued under the authority of the grand jury, it is the United States Attorneys Office that plays the leadership role in grand jury investigations. As Judge Weinstein explained in an opinion summarizing the role of the grand jury, [i]t is the United States Attorney who gathers the evidence for later presentation to the grand jury. He calls and examines witnesses, presents documents, explains the law, sums up the evidence and requests an indictment.

Consistent with the United States Attorneys leadership role in investigations, grand juries play virtually no role in the preparation and issuance of subpoenas. Rather, Rule 17 of the Federal Rules of Criminal Procedure says that the court clerk is required to give prosecutors a signed and sealed subpoena that is otherwise blank so that prosecutors can fill it in with the necessary information, such as the name and address of the recipient and the appearance date and time.

Most recipients of grand jury document subpoenas never even see the grand jury. For the most part, recipients provide documents ahead of time to the assigned government agents. Against this background, it comes as no surprise that even without grand juries meeting regularly (or even meeting at all), federal prosecutors have felt comfortable sending out subpoenas, collecting records, and moving their investigations forward.

And yet, even despite the control that federal prosecutors exercise over the grand jury process, a quick look at the standard language that appears on subpoenas leaves no doubt about the importance the grand jury retains. For example, a pre-COVID-19 subpoena to the University of Kansas in the recent case involving allegedly corrupt recruiting within NCAA basketball states, in standard language, with capital letters for emphasis: GREETINGS: WE COMMAND YOU that all and singular business and excuses being laid aside, you appear and attend before the GRAND JURY of the people of the United States for the Southern District of New York. The subpoena gives the address of the courthouse and the date and time of the required appearance, and also identifies the alleged violations being investigated. The subpoena further provides that the recipient is not to depart the Grand Jury without leave thereof, or of the United States Attorney, and that [f]ailure to attend and produce any items hereby demanded will constitute contempt of court and will subject you to civil sanctions and criminal penalties, in addition to other penalties of the Law.

Even if recipients of subpoenas never see the grand jury, the subpoena form thus uses the existence of the grand jury to highlight for the recipient the seriousness of the matter, the necessity of compliance (WE COMMAND YOU, in capital letters), the importance of the GRAND JURY (again in capital letters), and the consequences of non-compliance (contempt, civil sanctions, criminal penalties, and more). The grand jurys existence and ability to sit (with a quorum) on a particular date, in the language of the standard subpoena, is thereby an instrumental part of the power of the subpoena to obtain compliance from its recipient.

What happens, then, when a federal prosecutor issues a subpoena listing a return date when the prosecutor knows or should know that no grand jury will be available, as appears to have happened on a regular basis over the past few months? In all likelihood, the recipient of such a subpoena simply produces the records in advance of the return date. But is such a subpoena valid in the first place? To the extent the subpoena misrepresents to the recipient that a grand jury will be available and standing by at a particular date and time, waiting to receive records, does that misrepresentation invalidate the request? If the recipient produces records anyway, should those records be suppressed and excluded from future cases?

There are no clear answers to these questions, but the existing case law suggests there may be more of an issue here than the Department of Justices business-as-usual approach in recent months otherwise signals. Going back to Judge Weinstein, his opinion in United States v. Kleen Laundry & Cleaners, Inc. addressed the question of whether evidence should be suppressed where no grand jury was sitting at the time the prosecutor issued the subpoena that led to the production of the materials at issue. Judge Weinstein found that suppression was not warranted, because the absence of a sitting grand jury at the time of issuance is not disturbing since the return date was set for a day when the jurors were normally in session. (Emphasis added.)

In recent months, however, COVID-19 has flipped Kleen Laundrys scenario on its head, as federal prosecutors have issued subpoenas in which the return dates are set for days when the grand jurors are not going to be sitting.

Few authorities address this precise scenario. Starting with the Department of Justice Manual for federal prosecutors, Section 9-11.142 states, for financial record subpoenas (which have some unique rules), that [s]ound grand jury practice requires that, among other things, "[t]he subpoena be returnable on a date when the grand jury is in session. This statement of sound practice mirrors the standard at one time adopted by the ABA, stating, [a] subpoena should be returnable only when the grand jury is sitting. There is some question of whether a grand jury could be said to be in session when grand jurors have been summoned and empaneled, but do not physically appear for their duty because of some emergency (such as a global pandemic). But even if a grand jury is technically in session under such circumstances, and is simply unable to muster a quorum, the problem is still the prosecutors representation on the face of the subpoena that a grand jury will be available on the return date when the prosecutor knows or should know that is not true.

Turning to the case law, the Justice Manual cites United States v. Hilton, 534 F.2d 556 (3d Cir. 1976), which stated, in the somewhat different context of a forthwith subpoena (meaning a subpoena demanding immediate compliance), that it was improper for the prosecutor to make the subpoena returnable at a time when no grand jury was in session, because [i]rrespective of the motivation of the prosecutor, the hard fact is that a misrepresentation was made: the subpoena commanded a forthwith presentation to the grand jury of materials at a time when the United States Attorney's office may or should have known that the grand jury would not be in session to receive the documents forthwith. The Third Circuit explained that [u]nder these circumstances, the grand jury subpoena is no substitute for a proper application before a judicial officer for a search warrant, and that the conduct of the government represented an egregious circumvention of Fourth Amendment procedures.

The Third Circuit was not even the highest court to review this issue in 1976. That same year, in an opinion by Justice Powell, the Supreme Court famously decided in United States v. Miller, 425 U.S. 435 (1976), that depositors do not have a valid Fourth Amendment interest in personal account information held by banks of other financial institutionsthe so-called third-party doctrine. Somewhat less famously, though, Miller also raised but declined to address the issue raised in this column: Whether an ordinary document subpoena that was returnable on a date when the grand jury is not in session is defective and requires suppression of the evidence obtained.

In the Fifth Circuits underlying opinion in Miller, which the Supreme Court reversed on Fourth Amendment grounds, the Fifth Circuit had held that a grand jury subpoena issued by the United States Attorneys office, for a date when no grand jury was in session, . . . does not constitute sufficient legal process within the meaning of applicable Supreme Court precedent, such that the defendant in the case was entitled to a new trial at which the improperly obtained records would be precluded. The Supreme Court in Miller, however, expressly declined to address the question of whether the subpoenas at issue were defective, finding that that because Miller had no Fourth Amendment interest in records held by a third party, there was no basis for suppression.

Justice Powells papers, which are preserved in a manuscript collection at Washington & Lee University, reflect some uncertainty in his chambers on the question of the subpoenas validity. In a preliminary memo describing the Fifth Circuits holding, both Justice Powell and a law clerk appear to have made margin notes reflecting their initial approval of the Fifth Circuits holding that the subpoenas were defective in various respects, with the clerk writing [t]hat certainly sounds correct to me, and Justice Powell writing that it [d]oes make sense. In a subsequent bench memorandum, however, a different law clerk included a footnote stating that a survey of the case law suggested there was nothing to the Fifth Circuits holding that the subpoena was defective, and Justice Powell at that point appeared to agree, although the focus of the concern for the later law clerk, at least, appeared to be the fact that the United States Attorneys Office, rather than the grand jury itself, had issued the subpoena (which is a non-issue). In any case, by expressly declining to decide the issue, and by resolving the case on Fourth Amendment grounds alone, the Supreme Court arguably left in place the Fifth Circuits holding that there was a defect in the subpoena.

On the state side (where somewhat different rules govern), the First Department of the New York Appellate Division, in Rodrigues v. City of New York, held that prosecutors were not entitled to absolute immunity with respect to the claim of abuse of process based on the prosecutors unauthorized issuance of grand jury subpoenas at a time when no grand jury had been convened to hear evidence against plaintiffs. In strong language, the First Department explained, [s]ince no Grand Jury was convened, it is clear that the prosecutor defendants stepped outside the scope of their authority in using the device of a Grand Jury subpoena to conduct their own investigation. Thus, insofar as the issuance of the subpoenas is concerned, these defendants acted in the absence of authority and are therefore not entitled to absolute immunity.

From this muddle of authorities, it seems plain that the best practice is for prosecutors to make subpoenas returnable at a time when an actual grand jury is sitting and when the grand jurors are expected to be present, rather than making subpoenas returnable on dates when they know grand jurors will not be present in the grand jury room. To the extent prosecutors need to obtain evidence sooner than such an approach would allow due the current global pandemic, prosecutors retain a number of tools to achieve their goals, including judicially authorized search warrants. Thus, for purposes of subpoena practice, during the period in which grand juries are not meeting due to COVID-19, return dates should be set for dates when the prosecutors have some good-faith basis for thinking the grand jury will be back in the courthouse.

Finally, to the extent prosecutors have already issued arguably defective subpoenas over the past few months, what is the remedy? In ongoing investigations, it may be difficult for defendants ultimately to seek suppression, particularly where prosecutors can represent that the records would inevitably have been obtained at some later date with a corrected subpoena, and also in light of the fact that compliance with the subpoena arguably constitutes a waiver of any objection to defects the subpoena may contain. To the extent recipients of subpoenas have not yet produced records, however, there may be a basis, in appropriate cases, to question any too-soon return date, and to insist on a return date when grand jurors will actually assemble.

To read more from Brian A. Jacobs, please visit http://www.maglaw.com.

Continue reading here:
Quorum-tine: How COVID-19 Affects the Validity of Federal Grand Jury Document Subpoenas - Forbes