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In re Department of Investigation of City of New York

decided: June 29, 1988.

IN RE DEPARTMENT OF INVESTIGATION OF THE CITY OF NEW YORK, PETITIONER, UNITED STATES OF AMERICA
v.
BESS MYERSON, CARL A. CAPASSO, A/K/A "ANDY CAPASSO" AND HORTENSE GABEL, DEFENDANTS



Petition for writ of mandamus directing the United States District Court for the Southern District of New York (John F. Keenan, Judge) to quash a subpoena duces tecum directed to the Department of investigation of the City of New York seeking the investigative files of the so-called Tyler Commission. Because the issues should be raised by appeal after an adjudication of contempt, we deny the petition.

Lumbard, Meskill and Winter, Circuit Judges.

Author: Winter

WINTER, Circuit Judge:

This petition for writ of mandamus by the Department of Investigation of the City of New York ("DOI") arises out of a criminal proceeding in the Southern District against a former Commissioner of Cultural Affairs of the City of New York, Bess Myerson; a New York State Judge, Hortense Gabel; and Carl "Andy" Capasso, an intimate companion of Myerson. United States v. Myerson, No. 87 Cr. 796 (S.D.N.Y. Apr. 13, 1988). The DOI, supported by the United States ("government") as amicus curiae, seeks a writ directing Judge Keenan to quash a subpoena duces tecum served upon the DOI by Gabel. That subpoena sought the files of the so-called "Tyler Commission." We deny the petition on the grounds that the issues it raises should be resolved in an appeal after the DOI has been adjudicated in contempt.

BACKGROUND

The Tyler Commission, chaired by Harold R. Tyler, Jr., was created in response to Commissioner Myerson's invoking the fifth amendment in the course of a federal grand jury investigation. This investigation concerned allegations that Myerson had employed Gabel's daughter in the Department of Cultural Affairs as a quid pro quo for Gabel, the presiding judge in Capasso's divorce proceedings, substantially reducing the maintenance and support payments Capasso was required to pay his wife. Both before and after Myerson invoked the fifth amendment, the DOI has been an active participant in the federal investigation. A DOI Inspector General has been cross-designated as a Special Assistant United States Attorney for purposes of the investigation and trial, and several other DOI attorneys and investigators have, in the course of their participation in the federal investigation, had access to the federal grand jury minutes and evidence.

Myerson was a close associate of Mayor Koch. Because the investigation raised questions regarding her conduct as the Commissioner of Cultural Affairs, political and prudential considerations necessitated an early, credible investigation concerning that conduct. On January 22, 1987, therefore, Mayor Koch appointed Tyler as a Special Counsel to the Mayor for the purpose of investigating "the circumstances and substantive issues in the context of which . . . Myerson availed herself of her Fifth Amendment privilege before a Federal grand jury, which might in any way involve the discharge of Commissioner Myerson's official duties and any other matters reasonably related thereto." The Mayor could not vest the Commission with compulsory process. On January 28, 1987, Kenneth Conboy, then Commissioner of the DOI, an agency with such power, therefore designated Tyler and his staff as DOI agents "for the purpose of conducting the investigation directed by the Mayor on January 22, 1987 into matters which related or may relate to the office, standards, duties and actions of Bess Myerson as Cultural Affairs Commissioner . . . ." The DOI was actively involved in the federal investigation. To avoid any risk of jeopardizing the federal criminal investigation, Conboy's designation of Tyler and his staff specifically stated that any immunized testimony obtained by the Commission under legal compulsion from Myerson would not be disclosed to anyone in the DOI. Because the report of the Tyler Commission was to be shared with the Mayor, moreover, the Tyler Commission was not informed of testimony before the federal grand jury. This limitation was thought necessary to comply with strictures of Fed. R. Crim. P. 6 concerning grand jury secrecy.

Except for its lack of access to grand jury testimony, the Tyler Commission appears to have been a fully operating part of the joint DOI-federal investigation. Tyler understood from the beginning of his investigation that, although he was appointed to look into Myerson's conduct as a Commissioner, any evidence of criminal conduct uncovered in the course of his investigation would have to be routinely forwarded to prosecutorial authorities under a provision of the New York City Charter. Moreover, throughout the course of the Tyler Commission's investigation, Tyler and his staff conferred on a regular basis with the DOI and federal authorities and briefed them on their activities. These briefings apparently encompassed the Tyler Commission's entire investigation because the Commission decided, again to avoid any risk to the federal investigation, not to compel testimony by Myerson. The U.S. Attorney and the DOI in turn shared their evidence and leads, except for grand jury testimony, with the Commission.

After the Tyler Commission completed its report, the records of its investigation became part of the files of the DOI. On January 13, 1988, after she had been indicted, Gabel served on the DOI a subpoena duces tecum pursuant to Fed. R. Crim. P. 17(c) seeking production of "any and all documents, notes, papers, transcripts, pictures having anything to do with the investigation and report by Harold R. Tyler, Jr., Special Counsel, concerning his investigation of Bess Myerson . . . ." The DOI moved to quash the subpoena on the grounds, inter alia : (i) that it was an impermissible evasion of Fed. R. Crim. P. 16*fn1 and the Jencks Act, 18 U.S.C. ยง 3500;*fn2 (ii) that Gabel had failed to make an adequate showing of need under Fed. R. Crim. P. 17(c);*fn3 and (iii) that the material sought was privileged. In support of (i), the government agreed to treat the documents as subject to Rule 16 and the Jencks Act.

Judge Keenan held that Rule 16 and the Jencks Act did not apply because the Tyler Commission was not part of the federal prosecution. In this regard, he relied principally upon the facts: (i) that the Tyler Commission was concerned with Myerson's conduct in office rather than criminality; (ii) that the Commission could not share immunized testimony by Myerson with the DOI or federal authorities; and (iii) that the Commission was not privy to testimony before the federal grand jury. He also rejected the argument that production of the materials designated in the subpoena was not required under the standards enunciated in United States v. Nixon, 418 U.S. 683, 699-700, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). Judge Keenan did, however, refuse to order production of some documents on the grounds that they were subject to either the law enforcement or attorney-work-product privileges.

The DOI appealed and also sought a writ of mandamus directing Judge Keenan to quash the subpoena duces tecum. We dismissed the appeal for lack of jurisdiction because it was clearly interlocutory. In this opinion we deny the petition for writ of mandamus on the grounds that the issues raised should be resolved by appeal following a contempt adjudication rather than by mandamus.

Discussion

The DOI, supported by the government as amicus curiae, argues that the petition should be granted on the grounds that the documents in question can be disclosed pursuant only to Fed. R. Crim. P. 16 and the Jencks Act. The petition also asserts that the district court's application of Fed. R. Crim. P. 17(c) is inconsistent with the decision in Nixon and that the district court also misapplied the law enforcement and attorney-work-product privileges. We believe it clear that our decision in In re Weisman, 835 F.2d 23, 25-27 (2d Cir. 1987), precludes review by mandamus of claims regarding the particularized application of Rule 17(c) or of the asserted privileges. We turn therefore to the issues raised under Rule 16 and the Jencks Act.

The legal issues arising under Rule 16 and the Jencks Act are without direct precedent in this Circuit. We thus appear not to have ruled upon the precise circumstances in which documents in the possession of the state or local law enforcement officials must be disclosed pursuant to Rule 16 and the Jencks Act. See United States v. Paternina-Vergara, 749 F.2d 993, 997 (2d Cir. 1984), cert. denied, 469 U.S. 1217, 105 S. Ct. 1197, 84 L. Ed. 2d 342 (1985); United States v. Bermudez, 526 F.2d 89, 100 & n.9 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96 S. Ct. 2166, 48 L. Ed. 2d 793 (1976). In particular, we have not ruled on whether the files of an investigatory body within the DOI acting as Special Counsel to the Mayor of New York regarding an official's conduct in City office but otherwise (with the two limitations described above) participating in a joint DOI-federal investigation, must be disclosed by the government under Rule 16 and the Jencks Act. If disclosure of such files is not mandatory under those provisions, a final issue arises. The government stresses that it has "agreed" to treat the Tyler Commission files as subject to disclosure under Rule 16 and the Jencks Act, whether or not disclosure is mandatory. It argues that such an agreement forecloses resort by a defendant to Fed. R. Crim. P. 17(c) because the documents are ipso facto reasonably available to the defense under the agreement. While such an agreement may ...


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