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In re Grand Jury Subpoena Duces Tecum

decided: October 2, 1987.

IN RE: GRAND JURY SUBPOENA DUCES TECUM DATED MAY 29, 1987; JOHN DOE AND JANE DOE, APPELLANTS,
v.
UNITED STATES OF AMERICA, APPELLEE



Expedited appeal from order of the United States District Court for the Southern District of New York, Broderick, J., denying intervenors-appellants' motion to quash a subpoena duces tecum directed to their administrative assistant and granting the government's motion to compel compliance with the subpoena. Affirmed.

Van Graafeiland, Meskill and Newman, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge:

John and Jane Doe appeal from a decision of the United States District Court for the Southern District of New York, Broderick, J., allowing them to intervene but denying their motion to quash a subpoena duces tecum directed to their administrative assistant Richard Roe. Doe and Roe are pseudonyms used to preserve the anonymity of the principals involved and the secrecy of the underlying grand jury proceedings. The district court simultaneously granted the government's motion to compel compliance with the subpoena but stayed that portion of its order pending resolution of this expedited appeal. The Does argue, as they did below, that the subpoena violates their rights under the Fourth and Fifth Amendments. We affirmed the judgment of the district court on October 2, 1987, with a notation that an opinion would follow.

BACKGROUND

The Does, husband and wife, are respectively presidents of at least two corporations. They carry on their business and personal affairs from a suite of offices where their administrative assistant Roe also works. Although Roe is paid by a Doe-controlled corporation and his duties include corporate matters, he also looks after the Does' personal checking accounts. In connection with the latter he writes checks for the Does' signatures, keeps check registers, reconciles monthly statements, prepares deposits and maintains a separate ledger book for each account. The checkbooks, registers and ledgers are kept in a file cabinet in his office within the Does' suit; cancelled checks and past statements are filed in a credenza in the hallway outside of his office.*fn1 The Does' own offices are located elsewhere within the suite.

A grand jury is investigating allegations that the does diverted corporate funds to personal use while falsifying records to conceal the diversion and evade federal taxation. In the course of its investigation the grand jury issued a subpoena duces tecum on February 26, 1987, directed Roe to appear and bring any documents relating to such transactions. The subpoena, redacted to eliminate identifiable references to the Does, directed Roe to produce:

Any documents of any description relating or referring in any way to expenditures by [Doe-controlled corporation], a) for or on behalf of [the Does] personally, or b) for the provision of goods or services for [the Does' home] and its surrounding grounds.

J. App. at 76.

In his first appearance before the grand jury on March 24, 1987, Roe brought no documents but testified about the nature and scope of his work for the Does, including his role with respect to their personal checking accounts. The grand jury issued a second, more detailed subpoena duces tecum on May 29, 1987, requesting four specific categories of documents "within [Roe's] custody or control (joint or exclusive)." These were set forth in a rider attached to the May 29 subpoena as follows:

1) Any and all books, records or documents of any kind in your custody or control (joint or exclusive) relating or referring in any way to [a specified checking account], including, but not limited to, monthly statements, cancelled checks, check stubs or check register, deposit tickets, debit memoranda, credit memoranda, reconciliations, ledgers or journals.

2) Any and all books, records or documents of any kind in your custody or control (joint or exclusive) relating or referring in any way to [a second specified checking account], including, but not limited to, monthly statements, cancelled checks, check stubs or check register, deposit tickets, debit memoranda, credit memoranda, reconciliations, ledgers or journals.

3) Any and all books, records or documents of any kind in your custody or control (join or exclusive) relating or referring in any way to expenditures for construction, renovation, furnishing, goods or services, or operating expenses of any kind at [the Does' home] and the surrounding grounds in [city, state].

4) Any and all books, records or documents of any kind in your custody or control (joint or exclusive) relating or referring in any way to charge accounts in the name of, or ...


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