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In re Grand Jury Subpoena Duces Tecum

decided: June 27, 1985.


Appeal from an order denying motion of intervenor-defendant to quash a grand jury subpoena duces tecum served upon his attorney.

Feinberg, Chief Judge, Friendly and Newman, Circuit Judges.

Author: Feinberg

FEINBERG, Chief Judge:

Donald Payden, as intervenor, appeals from an order entered in the United States District Court for the Southern District of New York, David N. Edelstein, J., denying a motion to quash a grand jury subpoena served upon Robert M. Simels, Esq., 605 F. Supp. 839. Mr. Simels is Payden's counsel for the purpose of defending charges brought against Payden in an indictment pending before Judge Edelstein. The subpoena calls for the production of documents relating to the fee arrangement between Payden and Simels. For the reasons stated below, the district court's order must be reversed and the subpoena quashed.


Payden was arrested early in August 1984 pursuant to a complaint charging him with violations of the federal narcotics laws. See United States v. Payden, 759 F.2d 202, 203 (2d Cir. 1985). Shortly thereafter, he was indicted on similar charges. From the time of his arrest, Payden was represented by Jay Goldberg, Esq. until September 19, when, because of a potential conflict of interest, Goldberg was replaced by Simels. Before Goldberg's withdrawal as counsel, we are told by the government, he remarked to the prosecutor in charge of the case that he had expected to receive a fee of $250,000 from Payden.*fn1 The grand jury apparently continued its inquiry during this period, and on October 10, it returned a superseding indictment that added a count charging Payden with organizing and engaging in a continuing criminal narcotics enterprise in violation of 21 U.S.C. § 848, a charge carrying a possible life sentence. The § 848 count sought the forfeiture of "all profits and proceeds of profits obtained" by Payden from the operation of the enterprise.

A week later, the district court issued a subpoena to Simels, on the government's motion, commanding that he produce for use at trial (then scheduled for early December)

for the period January 1, 1984 to the present: any and all documents referring to, relating to, or reflecting any payment (or proposed payment) of fees (whether by cash, money order, real estate, or in any other way) by or on behalf of Donald Payden, with specific reference to (but not limited to) any retainer agreements, correspondence, bills, receipts, checks, photocopies of checks, or money orders, deposit tickets, ledger entries, as well as any documents pertaining to the transfer of property for legal services. n* [This item is not meant to apply to attorney-client privileged correspondence or other writings which may refer, in passing, to the fact of the payment of fees. No such documents need be provided in response to this item calling for non-privileged, fee-related documents. A listing of any items as to which a claim of privilege is raised should be provided.]

This provoked opposition from both Simels and the criminal defense bar. The president of the Association of the Bar of the City of New York expressed concern about "the obvious impact of such subpoenas on the attorney/client relationship and the defendant's right to effective assistance of counsel of his choice." At Simels' request, the trial subpoena was adjourned pending reconsideration of its issuance by the United States Attorney. No response came from the government until January 3, 1985, when Simels received a grand jury subpoena seeking the very same materials described in the trial subpoena; only after the issuance of this grand jury subpoena was the trial subpoena withdrawn.

On January 19, Payden moved in the district court to intervene as of right and to quash the grand jury subpoena pursuant to Fed. Crim. Rule 17. In support of the motion, Payden and Simels argued that the subpoena constituted an abuse of process because its "sole or dominant purpose" is to obtain evidence for use at trial and that the subpoena "impinges upon both defendant Payden's right to have counsel of his choice, and to have that counsel fully and effectively prepare for trial." They also suggested that any effort by the government to obtain the forfeiture of the fees paid Simels would violate the Sixth Amendment. Several amici curiae submitted briefs in support of the motion. In response, the government contended that further grand jury investigation offered the promise of "additional forfeitures, additional charges against Payden, and additional defendants in a superseding indictment" and that, even if compliance with the subpoena would force Simels to disqualify himself from representing Payden at trial -- a prospect whose likelihood the government would not concede -- Payden's Sixth Amendment interest in counsel of his choice would be outweighed by the government's need for relevant information in Simels' possession. While not avowing any present intention to seek the forfeiture of the fees paid Simels, the government also sought to maintain that option.

The district court denied the motion to quash. Addressing Payden's Sixth Amendment claims, the court first rejected as "unpersuasive" his argument that requiring Simels to disclose fee information would impermissibly chill Payden's "relationship of trust and confidence" with his attorney. The court then held there to be "no credible claim that the subpoena will prevent Payden's counsel from going to trial without adequate preparation." The court found that Payden would not be deprived of the effective assistance of counsel if Simels either testified before the grand jury or provided the grand jury with a sworn statement of the information sought; the court went on to conclude that Payden's right was not so absolute as to bar the government from choosing to call Simels as a trial witness, thereby disqualifying him. Finally, the court rejected Payden's claim that the prosecutor had abused the grand jury process; it held instead that the grand jury's investigation "was still in progress at the time the subpoena was issued," finding that the grand jury was still entitled to gather information "relevant to forfeiture" and to seek the identities of as yet unindicted co-conspirators.

This appeal followed. Because appellant-intervenor Payden seeks to quash a third-party subpoena on the ground that its enforcement will violate his constitutional rights, we may consider his claims without requiring his attorney to suffer a contempt citation. See In re Grand Jury Subpoena Served Upon John Doe, Esq., 759 F.2d 968, 971 n. 1 (2d Cir. 1985); In re Katz, 623 F.2d 122, 124-25 (2d Cir. 1980).


The opinion of the district court and the arguments made in this court indicate the significance of the Sixth Amendment issues implicated by post-indictment grand jury subpoenas of defense counsel. However, the doctrine that courts should not unnecessarily decide broad constitutional issues is a hoary one. Since the panel is in agreement that this appeal can be disposed of ...

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