On en banc reconsideration of an appeal from an order entered October 22, 1984 in the Eastern District of New York, Eugene H. Nickerson, District Judge, which denied a motion to quash a grand jury subpoena duces tecum, the judgment and opinion of the panel entered April 1, 1985, 759 F.2d 968, which reversed the order of the district court is vacated and the order of the district court is affirmed.
Before: FEINBERG, Chief Judge, OAKES, TIMBERS, MESKILL, NEWMAN, KEARSE, CARDAMONE, PIERCE, WINTER, PRATT, and MINDER, Circuit Judges.*fn*
TIMBERS, Senior Circuit Judge (with whom OAKES, MESKILL, NEWMAN, KEARSE, PIERCE, WINTER, PRATT and MINER, Circuit Judges, concur):
We have before us for en banc reconsideration an appeal from an order entered October 22, 1984 in the Eastern District of New York, Eugene H. Nickerson, District Judge, which denied a motion to quash a grand jury subpoena duces tecum.
A panel of this Court on April 1, 1985, by a divided vote, 759 F.2d 968, reversed the order of the district court and remanded the case for further proceedings.
For the reasons set forth below, we vacate the judgment and opinion of the panel and we affirm the order of the district court.
I. FACTS AND PRIOR PROCEEDINGS
A grand jury in the Eastern District of New York is investigating the activities of the Colombo organized crime family and a faction of that enterprise known as the "Anthony Colombo crew". Under investigation are a number of serious offenses, including murder, racketeering, narcotics trafficking, robbery, gambling, extortion, interstate transportation of stolen property and other federal crimes. On September 5, 1984, in connection with this ongoing investigation, a subpoena duces tecum was served on Barry I. Slotnick, attorney for Anthony Colombo, intervenor-appellant. The subpoena commanded Slotnick to appear before the grand jury and to produce:
"any and all records of fees, monies, property or other things of value received, accepted, transferred or held by BARRY SLOTNICK or by any associate of BARRY SLOTNICK on his behalf, from, on account of, or on behalf of [twenty one named individuals include Anthony Colombo].
These records are to include, but not be limited to, records of fees, monies, property or other things of value received, accepted, transferred to or held by BARRY SLOTNICK or by any associate of BARRY SLOTNICK on his behalf in connection with [nine enumerated criminal proceedings]."
The grand jury seeks to determine whether Colombo paid for, or otherwise arranged for, the legal representation of members of his crew. Evidence of such benefactor payments made to Slotnick might establish Colombo as the head of "an enterprise", as that term is defined in the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961(4)(1982).
At oral argument before this en banc court, the government stated that the subpoena duces tecum, although admittedly broad on this face, will be limited specifically to benefactor payments made by Colombo on behalf of his "crew" members. The subpoena, according to the government, will not encompass Colombo's payments to Slotnick for his own representation in the past, nor for Colombo's representation in connection with other outstanding indictments. Thus, the scope of the subpoena is limited to the government's inquiry as to a possible RICO violation.
Slotnick moved to quash the grand jury subpoena pursuant to Fed. R. Crim. P. 17(c), asserting that the government had failed to establish the relevance of, or need for, the information. Judge Nickerson denied the motion to quash. Colombo was granted intervenor status to appeal. In a 2-1 decision, a panel of this Court reversed the district court.
Subsequent to the panel decision, Colombo and members of is crew were indicted on charges of conspiracy to violate the narcotics laws, 21 U.S.C. § 846 (1982); engaging in a continuing criminal enterprise, 21 U.S.C. § 848 (1982); participating in multiple violations of the Hobbs and Travel Acts, 18 U.S.C. §§ 1951, 1952 (1982); and transporting stolen property interstate, 18 U.S.C. § 2314 (1982). Colombo was not indicted for the RICO violation in connection with which the grand jury seeks the information called for in the subpoena duces tecum.
Colombo claims that the appearance and testimony before a grand jury of his attorney, Slotnick, who has represented Colombo for nearly eighteen years, will lead, inevitably, to the disqualification of the attorney. A grand jury appearance, according to Colombo, would undermine this long-established relationship of confidence between Colombo and Slotnick. Thus, Colombo claims that his Sixth Amendment rights are implicated; and that, absent the government's demonstration of need for the information and that the attorney is the only source of that information, the subpoena should be quashed. Colombo also claims that, since he now has been indicted on some criminal charges and his Sixth Amendment rights have attached as to them, the subpoena constitutes an impairment of such rights and an abuse of the grand jury process.
In the balance of this opinion, we shall address each of these claims asserted by Colombo. We shall discuss, first, the preindictment issue and, second, the post-indictment issue.
Turning to appellant's claims urged upon this en banc court, we shall focus first on the questions presented to the district court in October 1984, i.e., during the preindictment period. The question as to whether the district court abused its discretion in denying the motion to quash the subpoena prior to indictment is not moot. Whether the government must establish a need for the information, in addition to its relevance, before a subpoena served on the attorney for an unindicted target of a grand jury investigation can be enforced, is a question that is "capable of repetition yet evades review". See In Re Special April 1977 Grand Jury, 581 F.2d 589, 591 (7th Cir.), cert. denied, 439 U.S. 1046, 99 S. Ct. 721, 58 L. Ed. 2d 705 (1978); In Re Grand Jury Proceedings (Freeman), 708 F.2d 1571, 1573 (1st Cir. 1983). Grand Jury investigations must proceed expeditiously. The length of time required for appellate review often is protracted. Frequently indictments will be returned before the appellate process is completed, as occurred here. The instant subpoena was served on Slotnick on September 5, 1984, more than a year ago.
Colombo asserts that compliance with the subpoena will chill the relationship between this attorney and himself and thus violate his Sixth Amendment right to assistance of counsel and his Fifth Amendment due process rights. Colombo therefore argues that, before this subpoena can be enforced, the government must demonstrate both a compelling or reasonable need for the information regarding benefactor payments and that his attorney is the only source of that information. Colombo contends that the traditional standard of relevance, see In Re Liberatore, 574 F.2d 78, 82-83 (2nd Cir. 1978), is not adequate to protect his "implicated" right to counsel. Colombo further contends that Fed. R. Crim. P. 17(c), which empowers a district court to quash a subpoena where "compliance would be unreasonable or oppressive", is not sufficient protection.
For the reasons stated below, we find Colombo's essential claims referred to above to be without merit. We decline to impose upon the government the additional requirement that it demonstrate a need for the information. At the pre-indictment stage, appellant's Sixth Amendment rights have not attached; nor at that stage, absent interrogation of a custodial target himself, are there additional rights grounded in the due process clauses. The fee information which the government seeks is not privileged. The appropriate time to balance the interest of the government and Colombo's right to counsel is at the pretrial stage, not at the grand jury stage.
There is no constitutional basis for imposing additional requirements for the government to meet before the grand jury subpoena can be enforced in this case. The Sixth Amendment does not require a preliminary showing of need before enforcing a grand jury subpoena served upon an attorney whose client is an unindicted target of a grand jury investigation.
The Sixth Amendment provides in part that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. At the time the district court denied Colombo's motion to quash the subpoena, he had not been indicted. Since Sixth Amendment rights do not attach until "the time that adversary judicial proceedings have been initiated", Kirby v. Illinois, 406 U.S. 682, 688, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972) (plurality opinion), Colombo could not assert a violation of his Sixth Amendment rights at the time of the district court's ruling.
In Kirby, the Court refused to "import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings." Id. at 690 (emphasis added). The Court explained that
"the initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant had solidified. It is then that the defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is the point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable."
We have followed the Supreme Court in holding that "[a] person comes under the protection of the sixth and fourteenth amendment right to counsel from the moment judicial proceedings are initiated against him, 'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" Carvey v. LeFevre, 611 F.2d 19, 21 (2nd Cir. 1979), cert. denied, 446 U.S. 921, 100 S. Ct. 1858, 64 L. Ed. 2d 276 (1980), quoting Kirby v. Illinois, supra, 406 U.S. at 689; see also United States v. Mohabir, 624 F.2d 1140, 1149 (2nd Cir. 1980) ("After prosecution has begun, the fright to obtain the assistance of counsel at all crucial stages is essential if both the symbol and reality of a fair trial are to be preserved...."). We have further held that, during the grand jury investigation of an unindicted target, the Sixth Amendment right to counsel does not attach. United States v. Vasquez, 675 F.2d 16, 17 (2nd Cir. 1982) (per curiam),; see also United States v. Mandujano, 425 U.S. 564, 581, 48 L. Ed. 2d 212, 96 S. Ct. 1768 (1976) (plurality opinion; dictum); In Re Groban, 352 U.S. 330, 333, 1 L. Ed. 2d 376, 77 S. Ct. 510 (1957) (dictum). Since adversary judicial proceedings had not been initiated against Colombo at the time of the entry of the district court order under review, his Sixth Amendment right to counsel had not attached, absent Colombo's interrogation as a suspect in custody, Miranda v. Arizona, 384 U.S. 436, 475, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). His interest in continuing to be represented by his present counsel was not of constitutional dimensions.
The Supreme Court has made clear that, when a grand jury subpoena does not infringe upon a constitutionally protected interest, there is no reason to require a preliminary showing before allowing the government to enforce the subpoena. United States v. Dionisio, 410 U.S. 1, 16, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973). Since Colombo's Sixth Amendment right to counsel has not attached, there is no merit to his contention that the Constitution requires any greater showing to be made in order to enforce this grand jury subpoena than to enforce any other.
Throughout his challenge to enforcement of the instant subpoena, Colombo has insisted that, even if his Sixth Amendment rights have not attached, his attorney's appearance before the grand jury will chill his potential Sixth Amendment rights, that the relationship between Colombo and Slotnick will be undermined irreparably, and that Slotnick will be disqualified from representing Colombo. He argues that to call his attorney before the grand jury is to set the stage for the attorney's forced withdrawal.*fn1 The Model Code of Professional Responsibility states:
"If, after undertaking employment in a contemplated or pending litigation, a lawyer believes or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client."
Model Code of Professional Responsibility DR 5-102 (B) (1979); Model Rules of Professional Conduct, Rule 3.7. Even assuming that this rule is intended to encompass grand jury testimony as well as trial testimony, Colombo's argument assumes too much. We decline to adopt what amounts to a per se rule that testimony of any attorney before a grand jury as to benefactor payments inevitably will lead to disqualification of that attorney from representing his client.
Before disqualification can even be contemplated, the attorney's testimony must incriminate his client; the grand jury must indict; the government must go forward with the prosecution of the indictment; and ultimately, the attorney must be advised that he will be called as a trial witness against his client. As a court, we decline to speculate that all those events will occur. Apparently Colombo ignores the possibility that his attorney's grand jury testimony may be exculpatory or neutral, or that the government may decide not to use such information at trial, or that the information may be presented at trial in such a way that the attorney can avoid testifying,*fn2 or that the trial judge may rule in limine that information is not admissible, perhaps because its probative force does not justify a resulting disqualification of counsel.*fn3 Disqualification of counsel is not inevitable.
We hold that Colombo's Sixth Amendment rights will not be violated by enforcement of this subpoena.
Colombo's second constitutional challenge to the subpoena is a vague assertion that requiring his attorney to testify as to fee information somehow implicates his Fifth Amendment due process rights. The claim is without merit.
We hold that the Fifth Amendment does not require a preliminary showing of need prior to enforcement of a grand jury subpoena served on counsel for an unindicted target of a grand jury investigation. The due process clause provides no greater opportunity for Colombo to halt the grand jury investigation than does the Sixth Amendment.
The Sixth Amendment right to assistance of counsel is "of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions'", Powell v. Alabama, 287 U.S. 45, 67, 53 S. Ct. 55, 77 L. Ed. 158 (1932), quoting Hebert v. Louisiana, 272 U.S. 312, 316, 71 L. Ed. 270, 47 S. Ct. 103 (1926), and therefore necessarily is included in the concept of due process of law. Powell v. Alabama, supra ; Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963). Powell v. Alabama and Gideon v. Wainwright made the Sixth Amendment right to counsel applicable to the states through the due process clause of the Fourteenth Amendment. While violations of an accused's right to counsel are encompassed within the concept of due process, the due process clauses neither expand nor contract the constitutional protection provided by the Sixth Amendment right to counsel.
A close examination of the cases discloses that even if there were no Sixth Amendment, historically the Fifth Amendment due process clause would protect that right. See Oakes, The Proper Role of the Federal Courts in Enforcing the Bill of Rights, 54 N.Y.U.L. Rev. 911, 919-23 (1979):
"The interrelationship of the enumerated rights is significant for several reasons. The Bill cannot be construed merely taxonomically, as a set of pigeonholes or preconceived rules into which a given factual situation does or does not fit. Rather it must be viewed as a whole; it is an interlocking complex of basic principles of fairness and individual entitlement that carries a continuing meaning applicable to entirely different or changed circumstances."
Id. at 922. In United States v. Flanagan, 679 F.2d 1072, 1075 (3rd Cir. 1982), rev'd on other grounds, 465 U.S. 259, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984), the court indicated that a defendant's decision to select a particular attorney is afforded some protection by the Sixth Amendment and by the due process clause of the Fifth Amendment, citing Davis v. Stamler, 650 F.2d 477, 479-80 (3rd Cir. 1981). Without any reference to the Fifth Amendment, the court in Davis v. Stamler stated that "the right to counsel of one's choice also derives from the due process clause, id., at 480, citing United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3rd Cir. 1969), cert. denied 397 U.S. 946, 90 S. Ct. 964, 25 L. Ed. 2d 127 (1970). Carey held that the Sixth and Fourteenth Amendments require that an accused be afforded a fair and reasonable opportunity to obtain counsel of his choice. Id. at 1211, 1215. Presumably, the court in Davis v. Stamler also was referring to the due process clause of the Fourteenth Amendment since that case involved a state criminal defendant, and the court cited Carey as support for its statement. This, however, leaves United States v. Flanagan with no support for its proposition that the due process clause of the Fifth Amendment protects a defendant's decision to retain particular counsel. The cases simply do not support the proposition that Colombo's due process rights under the Fifth Amendment are more expansive than the protection which the Sixth Amendment affords and therefore would require a greater showing before the government can enforce the subpoena. Even the Third Circuit cases cited above which do indicate that a defendant's decision to select a particular attorney is afforded protection by the Fifth as well as by the Sixth Amendment do not suggest that the Fifth Amendment protects a defendant's right to counsel more in either a qualitative or a quantitative sense than does the Sixth.
We hold that there is no merit in Colombo's argument that calling an attorney for an unindicted grand jury target to testify before the grand jury will violate his constitutional rights. Whether on constitutional grounds, or pursuant to our federal supervisory power,*fn4 we decline to impose an additional showing of need before the grand jury subpoena can be enforced under the circumstances of this case.
Aside from the absence of any constitutional basis for Colombo's position, there is no statutory or common law privilege protecting the information which the grand jury seeks to have disclosed. The government states that it seeks the information regarding fees and client identify as evidence of a criminal enterprise and Colombo's position as head of that enterprise. The government claims that evidence that Colombo, as "benefactor", paid for or otherwise arranged for legal representation for members of this criminal enterprise who were apprehended during the course of illegal activity would be relevant to determine whether Colombo should be indicted for his activities as head of criminal enterprise.
We consistently have held that, absent special circumstances, client identity and fee information are not privileged. E.g. In Re Shargel, 742 F.2d 61, 62 (2nd Cir. 1984); Colton v. United States, 306 F.2d 633, 637-38 (2nd Cir. 1962), cert. denied, 371 U.S. 951, 83 S. Ct. 505, 9 L. Ed. 2d 499 (1963); United States v. Pape, 144 F.2d 778, 782 (2nd Cir.), cert. denied, 323 U.S. 752, 65 S. Ct. 86, 89 L. Ed. 602 (1944). See also United States v. Hodge & Zweig, 548 F.2d 1347, 1354 (9th Cir. 1977). "The goal of enabling attorneys to offer informed professional advice and advocacy cannot be accomplished if courts may compel disclosure of communications between the client and attorney necessary to the provision of such services." In Re Shargel, supra, 742 F.2d at 63. But where the communication is not confidential and is not necessary to obtain informed legal advice for the client, no privilege exists. Fisher v. United States, 425 U.S. 391, 403, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976). While consultation with an attorney, and payment of a fee, may be necessary to obtain legal advice, their disclosure does not inhibit the ordinary communication necessary for an attorney to act effectively, justly, and expeditiously. For this reason, absent special circumstances not present here, disclosure of fee information and client identify is not privileged even though it might incriminate the client. In Re Shargel, supra, 742 F.2d at 63. Fee information may be sought as evidence of unexplained wealth which may have been derived from criminal activity, and information that fees were paid either by other clients or by third persons may be sought to determine the identify of a benefactor. Id. at 63-64. As a general rule, and specifically in this case, such information and client identity is not privileged even though it might ...