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In re Department of Investigation

decided: September 2, 1988.

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



Appeal by the Department of Investigation of the City of New york from an order of the United States District Court for the Southern District of New York (John F. Keenan, Judge) adjudicating DOI in contempt for refusing to comply with an order to produce documents subpoenaed by defendant Gabel pursuant to Fed. R. Crim. P. 17(c). Because the documents are privileged as investigative materials of a law enforcement agency, we vacate the contempt order.

Lumbard, Meskill, and Winter, Circuit Judge. Meskill, Circuit Judge, dissenting.

Author: Winter

WINTER, Circuit Judge:

This is an appeal by the Department of Investigation of the City of New York ("DOI") from Judge Keenan's order adjudicating DOI in contempt for refusing to produce documents subpoenaed by defendant Judge Hortense Gabel pursuant to Fed. R. Crim. P. 17(c). This adjudication followed our opinion denying appellant's petition for a writ of mandamus. In re Dep't of Investigation of the City of New York, 851 F.2d 65 (2d Cir. 1988). Judge Keenan held that the so-called Tyler Commission's investigation was not for law enforcement purposes and that its records therefore fell within the scope of Fed. R. Crim. P. 17. We disagree and vacate the contempt order.

The principal issue concerns the status of the Tyler Commission. This Commission was created after Bess Myerson, then Commissioner of Cultural Affairs of the City of New York and now a defendant in this matter, invoked the fifth amendment before a federal grand jury. The grand jury's investigation arose out of Myerson's employment of Gabel's daughter in the Department of Cultural Affairs. At the time of this employment, Gabel was a Justice of the New York State Supreme Court and was the presiding judge in the divorce proceeding of defendant Carl Capasso, with whom Myerson was romantically involved. The grand jury's investigation focused on whether the employment of Gabel's daughter was a quid pro quo for Gabel's substantially reducing the maintenance and support payments Capasso was required to pay his wife.

Myerson was a close associate of Mayor Koch. Because the investigation raised questions regarding her conduct in office as the Commissioner of Cultural Affairs, political and prudential considerations necessitated a prompt, credible investigation. On January 22, 1987, Mayor Koch appointed Harold R. Tyler, Jr. as 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, and which might in any way involve the discharge of Commissioner Myerson's official duties and any other matters reasonably related thereto." Tyler was "empowered to conduct the investigation in the manner [he] deem[ed] necessary and appropriate."

The Mayor lacked the authority, however, to vest the Commission with compulsory process. On January 28, 1987, Kenneth Conboy, then Commissioner of the DOI, an agency with such power, 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 . . . ." Conboy's designation of Tyler and his staff specifically stated that any immunized testimony obtained from Myerson by the Commission under legal compulsion would not be disclosed to anyone in the DOI. Throughout its existence, the Commission was deliberately not informed of testimony or evidence presented to the federal grand jury.

Both before and after Myerson invoked the fifth amendment, the DOI had 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.

Throughout its existence, the Tyler Commission worked very closely with the DOI and the United States Attorney's Office. Tyler's unchallenged affidavit states:

Throughout [the] investigation, [the Tyler Commission] conferred regularly with senior officials at DOI regarding the conduct of the investigation. [DOI] advised [the Tyler Commission] on certain DOI policies and outlined some of the procedures that DOI would have used if it had been conducting the investigation directly. To assist in developing leads, [DOI] also gave [the Tyler Commission] access to several confidential DOI investigative files and information not developed through the federal grand jury investigation. As a result of [the Tyler Commission's] communications with DOI, [the two] frequently exchanged correspondence and prepared internal memoranda summarizing the substance of [their] conversations.

At the start of [the Tyler Commission's] investigation, [the Tyler Commission] met on two occasions with the U.S. Attorney and his staff to discuss the conduct of [the Tyler Commission's] investigation. Thereafter, [the Tyler Commission] conferred regularly with the U.S. Attorney's Office. The Government attorneys and investigators provided [the Tyler Commission] with non-grand jury information that helped [the Tyler Commission] to focus [its] investigation. Wherever possible, [the Government] also assisted [the Tyler Commission] in contacting witnesses and made available to [the Tyler Commission] numerous documents in [the Government's] custody that [the Tyler Commission] had subpoenaed from third parties. During the course of [the Tyler Commission's] investigation, [the Tyler Commission] regularly briefed the U.S. Attorney's Office following each deposition or witness interview and alerted them to possible leads. As in the case of DOI, [the Tyler Commission] occasionally exchanged correspondence and prepared internal memoranda and notes summarizing the substance of these communications.

Gabel's subpoena to the DOI concerns two sets of documents: (i) transcripts of testimony of Judge Gabel's husband, Milton Gabel, and her daughter, Sukhreet Gabel, taken by the Tyler Commission; and (ii) the notes and memoranda compiled by the Tyler Commission with respect to its interviews of thirty-two other witnesses.

Gabel's counsel has conceded in a letter to this court dated July 14, 1988 that if the Tyler Commission was an integral part of the DOI-United States Attorney investigation, its files would not be subject to subpoena under Rule 17. The basis for that concession is, of course, the law enforcement privilege, which has been recognized in the absence of a statutory foundation, see Friedman v. Bache Halsey Stuart Shields, Inc., 238 U.S. App. D.C. 190, 738 F.2d 1336 (D.C. Cir. 1984); Black v. Sheraton Corporation of America, 184 U.S. App. D.C. 46, 564 F.2d 531, 541-42 (D.C. Cir. 1977), and which is largely incorporated into the various state*fn1 and federal*fn2 freedom of information acts. The purpose of this privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation. See Aspin v. Dep't of Defense, 160 U.S. App. D.C. 231, 491 F.2d 24, 29-30 (D.C. Cir. 1973); Frankel v. Securities and Exchange Commission, 460 F.2d 813, 817 (2d Cir. 1972).

The question before us is whether the Tyler Commission was, as Gabel describes it, "an independent fact finding body created solely to investigate whether Bess Myerson should continue in office . . . [and] not part of the DOI-U.S. Attorney investigation," letter of counsel for Hortense W. Gabel, dated July 14, 1988, at 1, or whether the Commission was an integral part of the DOI-United States Attorney investigation. Gabel's argument necessarily relies on the three factors that differentiate the Tyler Commission's labors from those of the DOI and United States Attorney. First, Tyler was appointed by the Mayor to look into Myerson's conduct in office and to report back to the Mayor. No mention was made of criminal proceedings. Second, under the terms of the DOI ...


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