EFTA01248965

7/5-/2-pi," Fee • Serial Charge Out FO-5 (Rev. 10-13-89) Date/4/2-D/ ; — Last Serial O Panting O Closed /fi Re_b k,h9tLe-2-15 J-0pm nen /y)Aii-roo Employee RECHARGE Date To From Date charged Employee Location FOPRBI< 3501.226-037 CONFIDENTIAL Page I of 46 EFTA_00075880 EFTA01248965 February 26, 2015 Via Federal Express Federal Bureau of Investigation Ann: FOI/PA Request Record/Information Dissemination Section Federal Bureau of Investigation Denartment of Justice RE: FOIA Requestfor pictures, videos and documents relating to Dear FOIA Officer, (represent (a.k.a. and pursuant to the federal Freedom of Information Act. 5 U.S.C. 552 we are requesting the copies of materials relating to Specifically, was interviewed by the FBI on March 17, 2011. A FD-302 report was entered on July 5, 2013. See Exhibit A. During the interview process. the FBI agents informed that they had retrieved from Jeffrey E stein's homes, video to s CDs and DVDs, pictures and documents, that include video tapes of pictures of and documents (including but not limited to e-mails and other records discussing It is our understanding that these images include naked images of and included images ofIMIE who was a minor at the time, being forced to engage in sexual acts with adults and other minors. We are requesting copies of these materials. It is our understanding that the materials were collected from the following residences owned by Jeffrey Epstein. 1) 358 El Brillo Way Palm Beach, Florida 33480 2) Little St. James 6100 Red Hook Quarters, Suite B3 St. Thomas. Virgin Islands 00802 mvt-iow4 - ,255 3501.226-037 CONFIDENTIAL Page 2 of 46 EFTA_00075881 EFTA01248966 SOIES. • SCHILLER & FlEXNER• LLP Letter to Federal Bureau of Investigation February 26, 2015 Page 2 3) 9 E. 7131 Street New York, NY 10021-4102 4) 5) This request covers the time period of June 1999 to December 2002. We agree to pay reasonable duplication fees for the processing of this request in an amount not to exceed $5000, without prior authorization. If our request is denied in whole or in part, we ask that you justify all deletions by reference to specific exemptions in the act. We will also expect that you will release all segregable portions of otherwise exempt material. We of course, reserve the right to appeal your decision to withhold any information. We have included in our submission a Certification of Identity from our client MK such that records can be released tc her attorney. Sincerely, SSM Enclosures 3501.226-037 CONFIDENTIAL Page 3 of 46 EFTA_00075882 EFTA01248967 I EXHIBIT A CONFIDENTIAL " ZIM4 6 7 131,1,00%5883 EFTA01248968 a -1 of 12- FEDERAL BUREAU OF INVESTIGATION Datedenty 07/05/2013 , maiden name , date of birth Social Security Account Number United States Citizen and Australian Permanent Resident, was interviewed at the United States Consulate in was advised of the identity of the interviewing agents and purpose of the interview. Present during the interview was Federal Bureau of Investiga ion Special Agent and via telephone, Assistant b6 i b7C United States Attorney' provided the following information: was born inl to parental 1 I f birth, b6 current' resides in and date of birth b7C currently resides in moved to Palm Beach County, Florida with her parents when she was four years old and returned to at age 11. She returned to Florida at age 13 and was placed in a rehabilitation or foster care facility in West Palm Beach, Florida. ran away from the rehabilitation facility when she was approximately 14 years old, and while living on the streets in Miami, Florida, she met' b6 b7C Iwas training to be an escort 'gave a life off of the streets which made her feel mve pwmm 03/17/2011 m In Person) FileI DetedmilW 07/05/2013 b6 b7C by This document contains nett recommaxlations nor caulunons of the FBI. It is the property of the FBI and is loaned to your agency, it and its contents are not to be dntributed outride your agency. 3501.226-037 CONFIDENTIAL Page 5 of 46 EFTA_00075884 EFTA01248969 / a ( 00 (Rev 05-06-10) eomon of FD-302 of on 03/17/2011 , per 2 of 12 like she was locked into the relationship gave pharmaceutical drugs toward the end of their relationship. b6 b7c relationship with) fended while she was at a private ranch near Ocala, Florida. telephonically contacted a childhood friend,) from a telephone at the ranch. b6 knewl 'from elementary school and called him at the home telephone b7C of his parents told) Ishe was very lonely, an sked her why she did not leave telephone conversation with the recreational vehicle Mrs staying in at the ranch) Idid not strike her) Ipack her belongings and told her she was going to live with another man. 1 1 1 1 b6 felt that she was sent t lbut did not know the b7C specifics of the arrangement. engaged in sexual activity with 'who was described as a white male stated I stayed withi jLNV for approximately one or two weeks before the police located her and returned her to her parents. was interviewed by a male detective. parents were still married at the time and lived near Florida. believed there was an FBI investigation related to She never saw again after In approximately June 1998 or 1999 began working at Donald Trump's Mar-A-Lago Club in Palm Beach, Florida. father l was able to help her gain employment as a baby sitter and later as a locker room attendant at the club. started studying for her GED and wanted to become a massage therapist. In Au ust, was reading an anatomy/massage book and was approached by b6 Irr b7C land help her get her masseuse accreditation consulted her father about the opportunity and at a roximately 5:00 p.m. the same day, her father drove her to a residence at 3501.226-037 CONFIDENTIAL Page 6 of 46 EFTA_00075885 EFTA01248970 r • „omo(Rsoos-0840 a 1 COMMON:'' of FD-302 of O„ 03/17/2011 p h se 3 of 12 Florida. spoke with father and told him it was a wonderful opportunity for met 1,6 b7C l also known as was led upstairs' Once upstairs En' I b6 b7C 'instructed to wash her hands prior to beginning the massage. The massage bega demonstrated massage techniques to During the course of the massage, uestioned b6 about her past, including her time as a runaway. was also b7C asked if she took birth control. b6 b7C was given instruction and began kissing' I b6 b7C At the conclusion,) 'instructed to obtain two warm wash clothes. One wash cloth was used to clean b6 second was' to help him relax. b7C describe and then moved to the steam room and shower where massaged with soap and a loofah in the shower. At the conclusion of the shower, went downstairs and' b6 b7C Arrangements were made for to return to the house the following day after work. cellular phone number was given tol 3501.226-037 CONFIDENTIAL Page 7 of 46 EFTA_00075886 EFTA01248971 .00410,4440 a a e Continuation of FD-302 of O, 03/17/2011 The same routine and pattern of massages and sexual activity between no 4 of 12 land continued for between one and two weeks. At b6 times, b7C loffered the option to quit her job at Mar-A-Lago and travel There was also discussion of receiving massage training. was to be paid $200.00 per day for travel and $200.00 per hour for massages. Early in her relationship with! met( b6 b7C land was introduced as[ assistant. soon began traveling For the initial six months, traveled( (around the United States and Caribbean, b6 including California, New York City, New Mexico, and various business b7C tri s. During those trips,( Six to nine months after began working for was introduced tol PU,I in b6 IFlorida. b7C I lat the time. met the couple at a condominium next to the (The condominium was bought) land was a In the condominium, provided a normal massa e t. NU. Shortly thereafter,[ 'LAU provided an erotic massage to RE and cleaned) She was paid cash IIn addition, paid was 16 years old at the timer- advised! K ntroduced her to the drug Xanax. She explained that Xanax helped her escape from reality but allowed her to b6 still function normally. Xanax helped her go forward with what she was b7C doing with land others. Her habit went from two pills per day up to eight pills per day. second client was an academic of some sort described as an older American male) 'sent from Miami Int rnational Airport tol 1,6 (by commercial airline. was picked up at the b7C airport byl land then taken to the island by boat. 3501.226-037 CONFIDENTIAL Page 8 of 46 EFTA_00075887 EFTA01248972 )0Lociter 05-0S-10) a (CCIIISI011 of 11).302 of ct 03/17/2011 my 5 of 12 pointed out that b6 'instructed to entertain the b7C client' land wanted to ride jet skis and participate in other island activities' with the client. I spent two days on the island assumes the client also traveled commercially. Durina thfollowing several months, traveled internationally I Prior to her traveling abroad getting her pass ort. ssisted got passport photographs of herself and in b6 provided them t he remaining paperwork was taken care of by b7C I l l traveled to Paris, France, the South of France, London, England, Africa, and Spain. While in Paris, recalled staying at a hotel overlooking the Champs-Elysees. While traveling) traveled on I travel,' a black plane. During the international lAt times, would 'Rarely a day would pass' - 'contacted thro h b6 land wanted to talk to b7C land offered a contract. agreed to the contract for her story and was paid $)40,000 for the story, $10,000 when the article was printed, and another $10,000 to be wired into account in May 2011. The contract prevented from talking to any other press for a specified period. advised that she provided' Faith detailed informatio b6 b7C b6 b7C 3501.226-037 CONFIDENTIAL Page 9 of 46 EFTA_00075888 EFTA01248973 "Ass(Rev 05.08-10) • a s par 6 of 12 fr i Cool:rowan of FD-302 of 0, 03/17/2011 b6 b7C At age 16, met b6 believed she and were b7C approximately the same ail!: an b6 b7C would dress b6 b7C , though 'explained b6 I provided an b7C rEMIM described' An unknown individual saw] when she arrived at b6 I b7C =III' had' said that day was a low stage in her relationship because she could not believe' never 3501.226-037 CONFIDENTIAL Page 10 of 46 EFTA 00075889 EFTA01248974 Otev.05-08-10) 4 Or Continuation ofFD-302 of .0, 03/17/2011 ht, 7 of 12 saw believed the girls may have been' b6 but b7C was not certain ofr 'involvement. had a picture of herself she wanted to give' b6 b7C described some of the unique interior areas of b6 b7C which referred to Jwhich was where stayed. While in New York, also stayed at an apartment on 66th street was aware ofl 'additional b6 apartments in the same building. According tor- Jthe b7C apartment building on 66th street was owned by] advised that she had a photo raph of the interior of the 66th Street apartment among other photos advised that some of her photographs that were provided to her civil attorneys by her family were not returned. One of the missing photos depicted wearing a pink dress while seated on a quad bike. ILNU was (female that formerly lived in' b6 b7C 3501.226-037 CONFIDENTIAL Page 11 of 46 EFTA_00075890 EFTA01248975 (litv 03-03-10) a a e Comma:me of FD-302 of 0„ 03/17/2011 joir 8 of 12 LNU and went shopping together and purchased clothing and sex to s. explained that b6 b7C I b6 b7c used a cellular telephone' IShe believed it was a New York City number but could not recall the number. and could only remember faces' 'not their names. did not but she did try unsuccessfully to get recalled' but she could 126 not recall the wording. U. b7C rIIIIIII advised' traveled' to a self-help conference at a hotel in New Orleans, Louisiana. The hotel b6 s near the Ha d Rock Café in New b7C Orleans. traveled the world 'ncluding the VSVI, New York, Santa Fe, Palm Beach, France, Africa, Spain and the United Kingdom. I b6 recalled visiting b7C Alhambra Castle in Spain. I I. eventually traveled to the United Kingdom and 3501.226-037 CONFIDENTIAL Page 12 of 46 EFTA 00075891 EFTA01248976 v 05-OH0) Cootinunkm ofFD-302 of On 03/17/2011 Jaw 9 of 12 while there' 'approached in a very excited manner and told her they had to go shopping to pick out a dress because would be b6 dancing with' b7C I and' $went shopping and purchased makeup, clothini, and a Burberr ba . The items were purchased with' b6 an returned' I b7C instructed to get ready. When came down after getting ready, she was introduced to traveled to CLUB TRAMP danced' 'atCLUB TRAMP' 'stayed at CLUB TRAMP for an hour or hour and a half and drank a couple of cocktails before returning to had not received any direction from After returning t4 requested' Ito take a photograph of her' advised that she still had the original photograph in her possession and would provide it to the interviewing agents. proceeded with Approximately two months later, met] lat b6 b7C recalledi LNU, recalled' 'joking about trading in because she was getting too old. CONFIDENTIAL 3501.226-037 Page 13 of 46 EFTA_00075892 EFTA01248977 .102.(Rei 05-08-10) a On 03/17/2011 " age 10 of 12 Communion of FD-302 call11115 I. MIME milt recalled meeting b6 was using Xanax heavily at time, b7C She remembered there were many models and her recollection was not clear. along with a modeling person who on the island that did not speak English had an unknown accent. b6 b7c I using prescription drugs. I 'did not have a problem with 'was described by as a b6 b7c I (TRUE NAME UNKNOWN b6 a ranch employee inl flout b7c Sle did have a photo graph of the ranch could not recall his name. employee. met numerous famous people acadiemics, politicians, and celebrities. She me H jincluding Ian I b6 b7C and! received many gifts, lincluding jewelry, watches, b6 bags, shoes, make up, cloth Ina. and home furni shings.' II b7c led to Thailand to left all of the items behind when she trave receive massage training. In August 2002, traveled by commercial airline to Training Massage and began her massage training at International ficat ion. She stayed at Sch.. TM where she received hpr mamsaae certi the b6 contacted y and b7C had fallen in ove with someone. 3501.226-037 CONFIDENTIAL Page 14 of 46 EFTA_00075893 EFTA01248978 4902Javw0544-10 Ccetinusuon of FD-302 of .00 03/17/2011 , putt 11 of 12 had not heard from' received a b6 telephone call from[ 'During that call/ stated he was an b7C FBI agent. He was trying to determine what she knew about She did not tell' anything about her knowledge of She also received another telephone call from a person that indicated he was an FBI agent. She did not tell that individual anything either. She also received a call from an attorney that was trying to determine if she had spoken with anyone or was willing to speak to anyone' 'She explained that she was receiving telephone calls from people whom she did not know and that she was uncomfortable telling them anything over the telephone. One or two weeks later, an unknown attorney andf 'contacted telephonically.' b6 b7C was using a cellular telephone belonging to her husband. She nor her husband could recall the telephone number but advised that the carrier was OPTUS telephone company. reviewed a series of photographs of individuals and identified the following: Page 1, number 1, Page 1, number 2, ILNU, a.k.a b6 b7C Page 2, number 1, Page 2, number 6, Page 3, number 2, Page 4, number 3, LNU Page 4, number 7, Page 4, number 8, Page 5, number 1, advised that the following were familiar to her, but she could not recall their names or her association to them: 3501.226-037 CONFIDENTIAL Page 15 of 46 EFTA_00075894 EFTA01248979 Commotion of FD-302 of ,, 03/17/2011 pan 12 of 12 Page 1, number 4 Page 2, numbers 7 and 8 Page 3, number 8 Page 4, number 1 Page 5, numbers 5 and 8 The images reviewed by were placed in a lA envelope of the case file. When questioned about United States Customs and Border (CBP) Patrol records of her entries into the United States, advised tpat her January 2001 record was the return from her London, England trip IThe April 2001 CBP b6 record was her return to the United States, b7C could not recall her travel from March and May 2001 CPB records. advised that her United States Passport was turned over to the United States Consulate in Sydney, Australia. On March 18, 2011, writer, SAI land 1,6 b7C traveled to residence where she provided 20 photographs and her ITM massage school certification. FD-597 Receipts for Property were executed for the items and a copy was provided to . It is noted that the receipts were dated based on the United States Eastern Standard Time Zone date. The photographs, certification and original FD-597s were placed in a lA envelopes of case file. 3501.226-037 CONFIDENTIAL Page 16 of 46 EFTA_00075895 EFTA01248980 r • • FORM APPROVED OMB NO. It 53 ROM EXPIRES0M/O Privacy Act Statement. In accordance with 28 CFR Section 16.4 lid) personal data sufficient to identify the individuals submitting requests by mail under the Privacy Act of 1974. 5 U.S.C. Section 552*. is required. The purpose of this solicitation is to ensure that the records of individuals who are the t of U.S. meat of Justice stems of records are not wen full disclosed th mina! penalties under IS U.S.C. Section 1001 and/or 5 U.S.C. Section 552a( 3). Public reporting burden for this collection of information is estimated to average 0.50 hours per response. including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Suggestions for reducing this burden may be submitted to the Office of Information and Regulatory Affairs. Office of Management and Budget. Public Use Reports Project (1103-00161. Washington. DC 20503. Full Name of Requester Citizenship Status 2 k..X C•-• ;-• 12 en Social Security Number 3 Current Address Date of Birth Place of Birth OPTIONAL: Authorization to Release Information to Another Person This form is also to be completed by a niquestrt oho is authorizing information relating to himself or herself to be released io another person. ,, • Further. pursuant to 5 US. on relating to me to: I declare under penalty of perjury war ie 6R of the toted Stake of America that the foregoing is true and cone* and that I am the person -lamed above. and I understand tint Wry laisirration of this statemen is punishable under the provisions of IS U.S.C. Section 1001 by a fate of 'Kg mom than 510,000 or by implication* of sot let en five years a both. and that requesting a obtaining any record(s) under false =tenses is punishable wider the provision of 5 USC 5520101by a hive of not more de $5,000. Signature ' Date Ca-/ ce-S 'Name of individual who is the subject of the teat) sone& : Individual submitting a request under the Privacy Act of Pin ilea be either citizen of the United States a an alien lawfully atoned for permanent residence," pursuant to 5 1.1SC Sedan, 552ata)(2). Requests will be processed as Freedom of Information Act equests pursuant to 5 U.S.C. Section 552. rather than Privacy Act requests. for individuals who are not United States citizens or aliens awfully admitted for permanent residence. ' Providing your social security number is voluntary. You are asked to provide your social security number only to facilitate the ientification of records relating to you. Without your social security number, the Department may be unable to locate any or all records enaining to you. 4 Sipature of individual who is the subject of the record sought. WIDLI PINS V. ' 3501.226-037 CONFIDENTIAL Page 17 of 46 EFTA_00075896 EFTA01248981 EFTA_00075897 EFTA01248982 CIRCUIT COURT CRIMINAL DIVISION P.O. Box 2906 West Palm Beach, FL 33402-2906 CONFIDENTIAL SHARON R. BOCK Clerk & Comptroller Palm Beach County PP IP ELECTRONIC COURT REPORTING WITNESS LOG CASE NO. Page of ti' s - ----- A4 • • ITNESS DIRECT CROSS REDIRECT RE-CROSS REDIRECT RE-CROSS END TTI CONTINUED CONTINUED 1 • hi • 143 10 .002,5' //:3A•eng g:_•47.w:47 /o:56::',Q, •• i 1 • /5 J1:31.7 "fr.. - T7a. . . I . 21 : id ,D:s•-frto ' -''.34:siei C-5g4.7 :54 :--)1 "2:fri,53(t, vial OFZ7,70fAi2) ..71mysiiiir,terixe. 2)647-.7-7) 41741 in - ill•A : ArfAry/Aw2t•hkcmv 1 :17: c?2, / :341:51 Defense AttorneYisl: at Asst. State Attylsl: .4.t ik4 aw . A E 214Ay .4itiAt .2>ite15.4At 8685L000- Vidg EFTA01248983 ELECTRONIC COURT REPORTING WITNESS LOG STATE V. CASE NO. - ‘-- 'tr.- / "'IL 4-0 I '. _me r7 't'd Ai io !WI C rzil A .114/ I Z 'Cr Ara qt.? I I 'L- TIT r i vine •-• F - • . 4.44•• • tr." it: DATE ST WITNESS DIRECT CROSS REDIRECT RE-CROSS REDIRECT or CONTINUEL DFS (74942/4 rr ,: M : ieR ,/ %!'O:2'4 '/).Cl/OZ ff /1: /1 .. /5 1%4Z- tr , c 7/II/a, if 9:21 -,Eme ?//9/ev tr li:341.-4q -16eilet, ti - 1/ I " : 5 4. ; 7 )1 e W ,t, itt ern/1CW <If .7.:eitAsi2 ) l 7; : ; ) ,. .7)//r.,:cli 1VIINKIHNOD a l 2: 14 742 ) *Ak 5 / 4 . B: Bench Conference Defense A torneYisl: *: Motion to Strike Asst. State Atty[s]: 444A/NA 6C-l-(≤WLAVex 4-14-cy Aliov .2),W5AN FomunNoness Log - 2005 6685L000-VLIM EFTA01248984 3501.226-037 CONFIDENTIAL Page 21 of 46 EFTA_00075900 EFTA01248985 3501.226-037 CONFIDENTIAL Page 22 of 46 EFTA_00075901 EFTA01248986 3501.226-037 CONFIDENTIAL Page 23 of 46 EFTA_00075902 EFTA01248987 3501.226-037 CONFIDENTIAL Page 24 of 46 EFTA_00075903 EFTA01248988 lir -5 -7,//q/a..6. 3501.226-037 CONFIDENTIAL Page 25 of 46 EFTA_00075904 EFTA01248989 3501.226-037 CONFIDENTIAL Page 26 of 46 EFTA_00075905 EFTA01248990 3501.226-037 CONFIDENTIAL Page 27 of 46 EFTA_00075906 EFTA01248991 3501.226-037 CONFIDENTIAL Page 28 of 46 EFTA_00075907 EFTA01248992 3501.226-037 CONFIDENTIAL Page 29 of 46 EFTA_00075908 EFTA01248993 3501.226-037 CONFIDENTIAL Page 30 of 46 EFTA_00075909 EFTA01248994 UV/VD/LIMO LU:41 Pets ablOUGildi UbAU lire) ry !WW2 U.S. Department of Justice United States Attorney Southern District ofFlorida September 6, 2006 DELIVERY BY FACSIMILE Denise Coffinan, Esq. Counsel to the Clerk of Court and Comptroller 15th Judicial Circuit of Florida West Palm Beach, Florida Re: Federal Grand Jury Subpoena Dear Ms. Coffman: Thank you for your agreement to accept service of the attached subpoena by facsimile. As I discussed with Kim Collins, the Clerk of Court is the custodian of the transcripts' of the state grand jury proceedings. Ms. Collins asked me to inform you that the transcripts are kept in the Circuit's Criminal Department. Florida Statute Sections 905.17(1) and 905.27 discuss the disclosure of state grand jury transcripts. Pursuant to those statutes, a transcript can be released upon an order of "a court." The statutes do not require that the order be issued by the Palm Beach County Court. I have attached two cases regarding the procedures for obtaining state grand jury transcripts for use in federal grand jury investigations. The cases that I have enclosed suggest that the appropriate way is to issue a federal grand jury subpoena to the party currently in possession of the tapes and/or transcripts of the proceedings. The cases that4have enclosed both involve orders issued by a federal court that compel the production of the transcripts. If the Clerk of Court feels that she cannot comply with the grand jury subpoena absent an order from the United States District Court compelling the production, then you must file a motion to quash the grand jury subpoena before the United States District Judge who empaneled the federal grand jury. Alternatively, if you like, you can state in writing your inability to produce the transcript absent a court order, and I can proceed before the United States District Judge by filing a motion to 'I do not know whether the grand jury proceedings have yet been transcribed. The enclosed subpoena calls for the tapes or the transcripts. If you would prefer to produce the tapes to be transcribed by one of our grand jury stenographers, that would satisfy the subpoena. If the Clerk of Court would prefer to have one of the state court stenographers do the transcription. production of the transcripts also would suffice. 3501.226-037 CONFIDENTIAL Page 31 of 46 EFTA 00075910 EFTA01248995 UV/Uti/ZUUli ZU:42 PAA 4b1OUZLIOI USAU $E$ rt. DENISE Comovs ESQ. SEPTEMBER 6, 2006 PAGE 2 compel with a proposed order for the United States District Judge to sign. If you prefer to file your own motion, I can assist in notifying the Court of the motion, which should be filed ex pane and under seal in accordance with Federal Rule of Criminal Procedure 6(e)(5) and (6). The subpoena calls for the production of the tape(s) or transcripts by September 15, 2006. If you need any additional time, please let me 'mow. If you have any questions or concerns, please do not hesitate to call me. Thank you for your assistance. Sincerely, R. Alexander Acosta United States Attorney By: Assistant United States Attorney cc: Special Agen 3501.226-037 CONFIDENTIAL Page 32 of 46 EFTA _00075911 EFTA01248996 USAU tl rn rL United States District Court SOUTHERN DISTRICT OF FLORIDA TO: CUSTODIAN OF RECORDS SUBPOENA TO TESTIFY Clerk of Court and Comptroller 15th Judicial Circuit of Florida BEFORE GRAND JURY Palm Beach County Courthouse FGJ 05-02(WPB)-Fri./No. OLY-17 205 North Dixie Highway West Palm Beach, FL 3340] SUBPOENA FOR PERSON DOCUMENTS OR OBJECT[S1 X YOU ARE HEREBY COMMANDED to appear and testify before the GrandJury oftheUnited StatesDistrict Court at the place, date and time specified below. PLACE: ROOM: Palm Beach County Courthouse Room 4-A Juvenile Courts Building 205 N. Dixie Highway West Palm Beach, Florida 33401 DATE AND TIME: (Temporary location for the United States District Courthouse, West Palm Beach) August 18, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Tapes or transcripts of any and all proceedings d Jury on Wednesday, July 19, 2006, referring or relating to Jeffrey Epstein and/or including but not limited to witness testimony, statements made by any member of the State Attorney's Office, and instructions given by any member of the State Attorney's Office. Please coord of this subpoena and confirm the date and ranee with Special Agent Federal Bureau of Investigation, Telephone: Please see additional information on reverse This subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court. CLERK September 6, 2006 This subpoena is issucd upon application Name, Address and Phone Number of Assistant U.S. Attorney 3501.226-037 CONFIDENTIAL Page 33 of 46 EFTA_000759 I2 EFTA01248997 vanv net. CI. tvvv Page 1 832 F.2d 554 832 F.2d 554, 24 Fed. R. Evid. Serv. 275 (Cite as: 832 F.2d 554) N United States Court of Appeals, the case is not ripe for appellate review until the Eleventh Circuit. subpoenaed party has actually been asked to reveal In re GRAND JURY PROCEEDINGS—Subpoena to specific material covered by the assertive privilege. State Attorney's Office. Thomas H. Greene, Dawson A. McQuaig, Jake [4) Grand Jury C=e36.9(2) Godbold, Don McClure, Intervenors- 193k36.9(2) Appellants. Federal common-law presumption of grand jury Nos. 87-3228. 87-3412-87-3414, and 87-3472. secrecy cannot be asserted in the form of a privilege by those seeking to prevent disclosure to a federal Oct. 26, 1987. grand jury of their state grand jury testimony. Rehearing and Rehearing En Banc Denied Dee. 10, Fed.Rules Cr.Proc.Rule 6(e). 18 U.S.C.A. 1987. [5) Grand Jury tE=.41.10 Persons whose sure grand jury testimony had been 193k41.10 subpoenaed by a federal grand jury appealed from order of the United States District Court for the [5] Wimesses C=184(1) Middle District of Florida, Nos. MISC-1-86-183-14, 410k184(I) MISC-J-86-183- 4, Susan H. Black, J., which Florida statute imposing secrecy on grand jury denied motions to suppress subpoenas. The Court proceedings does not create an evidentiary of Appeals, Tjofbt, Circuit Judge. held that: (1) privilege. West's F.S.A. § 905.27; Fed.Rules appellants could appeal denial of the motions to the Evid.Rule 501, 28 U.S.C.A. extent that they asserted a privilege, but (2) Florida °555 Lamar Winegeart, III, Arnold, Stratford & statute imposing secrecy on grand jury does not Booth, Jacksonville, Fla., for Greene. create evidentiary privilege. Eliyanerti White, Sheppard & White. William Affirmed in part and dismissed in part. Sheppard, Jacksonville, Fla., for McQuaig. West Headnotes Lacy Mahon, Jr., Jacksonville, Ha., for appellants. (1) Criminal Law C1023(3) Robert W. Merkle, Curtis S. Fallganer, M. Alan 110k1023(3) CeibaHos, Asst. U.S. Attys., U.S. Attorney's Grand jury proceeding is not a 'civil action" for Office. Jacksonville, Ha.. for appellee. purposes of statute permitting interlocutory appeals in civil actions with respect to controlling questions Appeals from the United States District Court for of law. 28 U.S.C.A. § 1292(b). the Middle District of Florida. [2] Criminal Law 0=1023(3) Before TJOFLAT and KRAYITCH, Circuit 110k1023(3) Judges, and TUTTLE, Senior Circuit Judge. Persons whose state grand jury testimony had been subpoenaed by federal grand jury could appeal the TJOFLAT, Circuit Judge: denial of their motions to quash the subpoenas to the extent that they asserted a privilege as to the Appellants appeal from an order of the district material, but could not raise issues of procedural court denying their motion to quash a federal grand violations or federal-state comity on appeal. jury subpoena directing a state prosecutor to produce transcripts of their testimony before a state (3) Criminal Law it=.1023(3) grand jury. We affirm. 110k1023(3) When party has been subpoenaed to testify or I. produce records for grand jury and third-party In 1985, the State Attorney's Office for the Fourth merely fears that privileged material may be Judicial Circuit of the State of Florida initiated a disclosed along with other, nonprivileged material, grand jury investigation into allegations of improper 0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 3501.226-037 CONFIDENTIAL Page 34 of 46 EFTA_000759 13 EFTA01248998 ustO wpB FL Z 006 Page 2 832 F.2d 554 (Cite as: 832 F.2d 554, *555) influence peddling by certain public officials of the ruling against disclosure. Greene and McQuaig City of Jacksonville. Witnesses appearing before then moved the court to permit them to intervene the state grand jury included the four appellants in pursuant to Fed.R.Civ.P. 24 and to file similar this case: lake Godbold, then the mayor of motions to quash. In his motion to intervene. Jacksonville. Don McClure, Godbold's chief McQuaig asserted that prior to testifying before the administrative aide. Dawson McQuaig, a former state grand jury, he had received assurances from general counsel for the city, and Thomas Greene, a the State Attorney that Florida law prohibited any practicing attorney and an associate of Godbold's. disclosure of his grand jury testimony. Greene did Each of these witnesses appeared and testified not allege in his motion that he bad received funilar voluntarily. assurances, but stated that he was entitled to intervene because -state grand jury proceedings No criminal charges resulted from the state grand [axe] secret and confidential by virtue of the jury investigation. In August 1985, however, the provisions of Chapter 905 of the Florida Statutes.* state grand jury issued a report that identified The district court granted the motions to intervene, several instances in '556 which "political favors and and subsequently permitted Godbold and McClure game-playing for friends" had infected the City's to intervene as well. IFN2) process of awarding contracts for professional services. Godbold, McClure, McQuaig, and FN2. Godbold and McClure also based their Greene each waived his right under F1a.Stat. § motions to intervene on the Florida grand jury 905.28(1) (1985) to suppress the report. The secrecy requirement. The substance of the report, however, did not contain the substance of privilege that appellants assert is discussed in part their testimony. nr, Meanwhile, federal prosecutors had initiated a In November 1986, the district court entered an federal grand jury investigation into substantially order inviting the United States to make an ex pane the same matters investigated by the state grand factual submission showing why it needed the state jury. Godbold. McQuaig, McClure, and Greene grand jury transcripts. The government declined to each indicated that he would assert the fifth accept the invitation and made no submission. The amendment if subpoenaed to testify before the court then entered an order granting the motions to 4,29, federal grand jury. Relying on the disclosure quash. Applying the balancing test set forth in provisions of Fla.Stat. § 905.27(I)(t) (1985). [FNI) Douglas Oil Co. v. Petrol Sr .t Northwest, 441 the United States in August 1985 petitioned a state U.S. 211, 99 S.Ct. 1667. 60 M.2c1 156 (1979), judge to order the State Attornenanun nver.to_die the court found that the government had failed to federal grand jury the appellants' state grand jury establish a sufficient need for the testimony. testimony. The United States made to factual suisT4ssion in support of its petition. _The_uate Twenty-eight days after the court granted the judgtxefused LoSslaracterizing the motions to quash, the United States filed ''M effort to obtain the testimony as a "fishing for Reconsideration of Opinion and Order" along expedition." with an ex parte affidavit identifying facts supporting the grand jury's need for the testimony. FN1. Under this provision, a court may order The district court questioned the procedural disclosure of grand jury testimony for die purpose correctness of the government's motion for of "fflurthering justice." reconsideration, and stated that under ordinary circumstances it would not consider the motion. In in October 1986, the federal grand_nny" issued the court's view, however, denial of the motion subpoena duces tecum ordering the State Attorney would not prevent the United States from obtaining to produce appellants' state grand jury testimony. the testimony: the United States could simply The State Attorney moved the federal district court reissue the subpoena and defeat any motion to quash to _quash the subpoima, arguing that disclosure of on the strength of the information contained in the grand—Wry transcripts was unlawful under Florida IS ex pane affidavit. The court concluded that the law, that the United States had not demonstrated most efficient solution was to consider the newly sufficient need for the transcripts, and that comity submitted information in the rontext of the required the district court to honor the state court's government's motion for reconsideration. Atter 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 3501.226.037 CONFIDENTIAL Page 35 of 46 EFTA_00075914 EFTA01248999 832 F.2d 554 Page 3 (Cite as: 832 F.2d 554, 4556) considering the new information in camera, the denying the motion to quash can be considered an district court entered an amended order in which it order entered in a 'civil action.' reversed its original order denying the motion to quash. The district court certified its amended (1] We hold that a grand jury proceeding is not a order for interlocutory *557 appeal pursuant to 28 'civil action' for purposes of section 1292(b). lust U.S.C. § 1292(b) (1982 & Supp. 11 1984), and this in terms of the plain meaning of words, it seems court granted permission to appeal. The four self-evident that an order denying a motion to quash intervenors appealed, although the State Attorney a subpoena issued by a grand jury investigating did not. possible criminal violations is not part of a 'civil action.' We base our conclusion on more than a Appellants make two arguments before this court. mechanical labeling of the proceedings below, First, they argue that the government's motion for however. By expressly limiting section 1292(b)'s reconsideration was untimely and that the district application to 'controlling question[s] of law" in court therefore had no authority to hear it. "civil' cases, Congress clearly indicated its intent According to appellants, the applicable time limit not to disturb well-established precedent forbidding for the motion was the ten-day limit of piecemeal review of grand jury proceedings. In Fed.R.Civ.P. 59(e), not, as the government Cobbkdick v. United States, 309 U.S. 323, 60 contends, the thirty-day limit of 18 U.S.C. § 3731 S.Ct. 540, 84 M. 783 (1940), decided eighteen (1982 & Supp. 11 1984). Second, appellants argue years before Congress enacted section 1292(b), the that the district courts amended order was in error Supreme Court held that a district court's denial of for the following reasons: (1) the government had a motion to quash a grand jury subpoena was not an failed to demonstrate a sufficient need for appealable final decision within the meaning of the appellants' grand jury testimony, and (2) comity predecessor section of 28 U.S.C. § 1291 (1982). required the court to give greater deference to the Noting that the Constitution itself makes the grand state judge's decision against releasing the jury part of the criminal process, the Court testimony. Because of the nature of our ruling concluded that "(th is no less important to safeguard today, we do not reach the merits of these against undue interruption the inquiry instituted by a arguments. grand jury than to protect from delay the progress of the trial after an indictment has been found." Id. 11. at 327, 60 S.Ct. at 542; see also Di Bella v. United We first address the threshold issue whether we States. 369 U.S. 121, 124, 82 S.Ct. 654, 656-57, 7 have jurisdiction to hear this appeal. Although this M.2d 614 (1962) ('This insistence on finality and court granted the intervenors permission to appeal prohibition of piecemeal review discourage undue pursuant to section 1292(b), we must of course litigiousness and leaden-footed administration of dismiss the appeal if we are without jurisdiction. justice, particularly damaging to the conduct of See Robinson v. Tanner. 798 F.2d 1378, 1379 (11th criminal cases.`). Cir.1986) cen. denied. 481 U.S. 1039, 107 S.°. 1979. 95 S.2d 819 (1987). Although Cobbledick was based on the principle of finality found in section 1291, that same principle Under section 1292(b), a district court may certify fords expression in section 1292(b). We are unable for appeal a non-final order entered in a civil action to conclude that Congress, by authorizing if the court is of the opinion that the order 'involves permissive interlocutory appeals of 'controlling a controlling question of law as to which there is question(sJ of law' in 'civil" actions, intended to substantial ground for difference of opinion' and undermine the strong policy against permitting that resolution of the question 'may materially appellate interruption of grand jury *558 advance the ultimate termination of the litigation.' proceedings. Accord In re April 1977 Grand Jury By its terms, section 1292(b) applies only to orders Subpoenas. 584 F.2d 1366, 1369 (6th Cir.1978) in civil actions, and has no application to appeals in ("[Section 1292(b) ] limits interim review of 'a crimir.al cases. See United States v. Doucet. 461 controlling question of law' to civil cases only and, F.2d 1095 (5th Cir.1972): United Stares v. Lowe. therefore, should not be read to allow interlocutory 433 F.2d 349 (5th Cir.1970). Therefore, we have review or grand jury proceedings.'), cert. denied, no jurisdiction to hear this appeal pursuant to 440 U.S. 934, 99 S.Ct. 1271, 59 M.2.d 492 section 1292(b) unless the district courts order (1979). e 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 3501.226.037 CONFIDENTIAL Page 36 of 46 EFTA 00075915 EFTA01249000 4JUU8 832 F.2d 554 Page 4 (Cite as: 832 F.2d 554, •5511) [21 We next examine whether there is a separate State Attorney. The State Attorney has indicated basis for appellate jurisdiction in this case. As we his intention to produce the transcripts. In light of have already indicated, orders denying motions to these circumstances, the order denying the motion quash grand jury subpoenas are ordinarily not to quash is a final order as far as appellants are appealable foul orders under section 1291. The concerned. We therefore have jurisdiction to bear subpoenaed party can obtain review by refusing to their appeal. [F7l3) comply with the subpoena and then contesting a contempt citation, which is immediately appealable. F113. We note that the wily material sought from See United States v. 402 U.S. 530, 532-33, the subpoenaed party in this use is material that 91 S.Q. 1580, 1582, 29 M.2c1 85 (1971). The falls squarely within the privilege asserted by the contempt route for obtaining review. however, is third parties. This is not a case. thelk, where * party has been subpoenas to testify or product not open to a third party who claims a privilege of records and a third party mady fears that nondisclosure with respect to materials in the privileged material may be disclosed along with custody of the subpoenaed parry. In such a case, other, conprivilcectl material. In the law the putative privilege-bolder has no power to situation. the use is nor ripe for appellate review compel the subpoenaed party to incur a contempt until the subpoenaed parry has actually been asked citation. And the subpoenaed party, unless be has to reveal specific material coveted by the asserted either a particularly close relationship to the putative privilege. See In it Grand Jury Proceedings (Doe privilege-holder or a personal interest in ). 831 F.24 222 (11th Cir.1987). nondisclosure of the material is unlikely to risk a contempt citation simply to vindicate the rights of 111. the third parry. In this situation, the order denying In deciding that the narrow Perlman exception the motion to quash is indeed final with respect to applies in this case, we have also necessarily the putative privilege-holder, for any prejudice he defined the scope of the matters properly before us suffers as a result of disclosure will remain forever for review. Appellants raise several objections to unredressed unless appeal is permitted. disclosure, including procedural objections and objections based on comity considerations and the Accordingly, this circuit follows the so-called need to protect the Sbheaa int Perlman exception to the general rule prohibiting jury system. wever, the only matter that the interlocutory appeal of orders denying motions to Perinuut exception gives us jurisdiction to review is quash grand jury subpoenas. See In re Grand Jury the appellants' claim_ of to prevent Proceedings (Twist), 689 F.2d 1351 (I Ith Cir.1982) disclosure of their state grand jury testimony. In re Grand Jury Proceedings (Fine), 641 F.2d *559 The rationale of the Perlman exception 199 (5th Cir. Unit A Mar. 1981); cf. In re extends only to appeals based on privileges personal International Horizons, Inc., 689 F.2d 996 (11th to the third party seeking review: if the subpoenaed Cir.1982) (discovery order in bankruptcy party has a direct or primary interest. in the right or proceedings). This exception, derived from privilege in question, the concerns giving rise to the Perlman v. United States. 247 U.S. 7, 38 S.Q. Perlman excepticui simply are not present. Here, 417, 62 M. 950 (1918). and confirmed in United to the extent that their objections to disclosure are States v. Nunn 418 U.S. 683, 691, 94 S.Ct. 3090, based .on concerns relating to comity and the 3099, 41 M.2d 1039 (1974), permits an order integrity of the Florida grand jury, appellants denying a motion to quash to be 'considered final as cannot argue that the subpoenaed parry bad no to the injured third party who is otherwise interest in seeking to vindicate their derivative powerless to prevent the revelation.' Fine, 641 right. lam_ the subpoenaed party--the State] F.2d at 202. Floridanou4 by the Stare tetwney- had ants prima lateness the Protection of its trend [3) The circumstances supporting application of the jurialtent Accordingly, the Perlman exception Perlman exception are present in this case. does pot give us jurisdiction to review the Relying on the Florida grand jury secrecy appellants' arguments concerning comity and the requirement, appellants in essence assert a privilege need to preserve the integrity of the Florida grand of nondisclosure. The material with respect to jury. [FN4) Nor does it give us jurisdiction to which they assert the privilege—transcripts of their review their procedural arguments. Thus, we do state grand jury testimony—is in the custody of the not pass upon the district court's disposition of tt 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 3501.226-037 CONFIDENTIAL Page 37 of 46 EFTA_00075916 EFTA01249001 to !sou 832 F.2d 554 Page 5 (Cite as: 832 F.2d 554, '559) those matters and we turn to appellants' claims of awe or permit to be published. broadcast. privilege. disclosed, divulged. or oxamuoicated to any other person in any manner whatsoever, any testimony of a witness examined before the grand jury. or the FN4. We should emphasize that this discussion content, gist, or import thereof, except when such relates only to appellants' right to appeal under the testimony is or has been disclosed in a court PCIIMCLIt exception. It does not relate to their proceeding. When a court orders the disclosure of standing to raise these claims before the district such testimony pursuant to subsection (1) for use in °NAO. a criminal ease, it may be disclosed to the prosecuting attorney of the court in which such The appellants' motions to intervene in the district criminal ease is pending. and by him to his court proceedings reveal the nature of the privilege assistants, legal associates, and employees, and to . they assert. Appellant McQuaig's motion stated the defendant and his manna, and by the to that "[p]rior to appearing before the [state] Grand his legal associates and employees. July, Mr. McQuaig was advised by the State disclosure is ordaed by a court pursuant to Attorney that pursuant to Section 905.27, F1a.Stat. subsection (1) for use in a civil case, it may be disclosed to all parties to the case and to their (1985): a) none of the testimony be provided to the attorneys and by the latter to their legal associates Grand Jury was disclosable under the law; and b) and employees. However, the gland jury any disclosure of said testimony was a crime: testimony afforded such persons by the court an Appellant Green's motion stated that "[the) state only be used in the defense or prosecution of the grand jury proceedings were secret and confidential civil or criminal case and for no other purpose by virtue of the provisions of Chapter 905 of the whatsoever. Florida Statutes." Appellant Godbold's motion (3) Nothing in this season shall affect the attorney. stated that "testimony was provided with the aka relationship. A client shall have the right to understanding on the part of lake Godbold that communicate to his attorney any testimony given pursuant to § 905.27 of the Florida Seamus. his by the client to the greed jury, any mauers testimony would not and could not be disclosed involving the diem discussed in the eliem's under the law." Finally, appellant McClure's presence before the grand jinn and any evidence involving the client received by or proffered to the motion stated that "[Om substantial interest of Don grand jury in the client's presence. McClure is equal to or greater than that of the two (0) Persons convicted of violating this section shall other parties previously allowed to intervene." be guilty of a misdemeanor of the first degree. punishable as provided in s. 775.083, or by line In essence, then, appellants derive the privilege not exceeding $5,000, or both. they assert from the Florida statutory grand jury (5) A violation of this section shalt constitute secrecy requirement. The statute imposing that criminal contempt of court. requirement provides as follows: (I) A grand juror, state attorney, assistant state [4] Federal Rule of Evidence 501 provides that attorney, reporter. stenographer. interpreter, or privileges in federal court proceedings "560 shall any other person appearing before the grand jury be governed by the principles of the content law as shall not disclose the testimony of a witness they may be interpreted by the courts of the United examined before the grand jury or other evidence States in the light of reason and experience." The received by it except when required by a court to privilege appourtut assert, as stated in their motions disclose the testimony for the purpose of: to intervene, is based solely on state law. [FN6] (a) Ascertaining whether it is consistent with she We acknowledge that some federal courts have testimony given by the witness before the court: recognized state law evidentiary privileges in (b) Determining whether the witness is guilty of particular cases when to do so would not perjury; or substantially burden federal policies. See. e.g., (c) Furthering justice. Lora v, Board of Education, 74 F.R.D. 565, 576 Fla.Stat. § 905.27 (1985). [FNS) (E.D.N.Y.); cf. ACLU v. Finch, 638 F.24 1336, 1342-45 (5th Cir. Unit A Mar. 1981). FNS. The remainder of section 905.27 provides as follows: FN6. In their briefs, appellants suggest that the (2) It is unlawful for any person knowingly to privilege they assert has an independent basis in the publish. broadcast, disclose. divulge, • or federal common law presumption of grand jury communicate to any other person, or knowingly to socray. That presumption, which is cod:: in C 2006 ThornsonfWest. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL 3501226-037 Page 38 of 46 EFTA_00075917 EFTA01249002 "(JULY 832 F.2d 554 Page 6 (Cite as: 832 F.2d 554, '560) Fed.R.Crim.P. 6(c), relates to disclosure of federal appellants have no privilege of nondisclosure under grand jury records. It cannot be asserted in the state law. A federal court will not selectively reach form of a privilege by appellants, who seek to into a state code and fashion evidentiary privileges prevent disclosure of their stole grand jury merely to suit the purposes of the parties before it. testimony. FN7. Some Florida cases refer to the 'privilege' [5) We need not apply any such balancing test of a grand jury witness, but only with reference to here, however, because we find that the privilege the general principle under Florida law that a asserted by appellants is without a basis in Florida witness' testimony in a judicial proceeding nowt law. We find no evidence that the Florida courts be used as the basis of a defamation action. See, derive an evidentiary privilege from Fla.Stat. § e.g.. State v. Tilka. Ill S0.24 716 905.27. indeed, the Florida Supreme Court has (Fla.Disi.CLApp.1959). noted that [t]he rule of secrecy concerning matters Iv. transpiring in the grand jury room is not designed In light of our conclusion that appellants have no (or the protection of witnesses before the grand privilege of nondisclosure under state law, we jury, but for that of the grand jurors, and in affirm the district court's order denying their furtherance of the public justice. A witness motion to quash. Because we must observe the before the grand jury has no privilege of having limitations on our appellate jurisdiction discussed his testimony there treated as a confidential above, we dismiss their appeal to the extent that it is communication.... based on other objections to disclosure. Stare a rel. Brown v. Dewell, 167 So. 687, 690 (Fla.1936). Florida case law directly construing AFFIRMED in pan; DISMISSED in part. section 905.27 bits to provide a contrary interpretation of the relationship between the 832 F.2d 554, 24 Fed. R. Evid. Sm. 275 secrecy requitement and the rights of grand jury wimesses. (FN7j Accordingly, we conclude that END OF DOCUMENT t 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 3501.226-037 CONFIDENTIAL Page 39 of 46 EFTA_000759113 EFTA01249003 wjVA.1. 824 F.Supp. 330 Page 11 824 F.Supp. 330 (Cite as: 824 F.Supp. 330) C United States District Court, grand jury investigation after police officers refused W.D. New York. to cooperate, subpoena was definite and did not call In the Matter of Subpoena Duce Tecum Directed to for production of unreasonable amount of the Honorable Kevin M. documents, United States had strong interest in DILLON, District Attorney of Erie Counry. insuring just enforcement of its criminal laws, and Civ. No. 92-13A. privacy limitations on federal grand jury documents limited potential harm from disclosure. Fed.Rules Feb. 20, 1992. Cr.Proc.Rules 6(c). 17, 18 U.S.C.A.; N.Y.McKinney's CPL § 190.25, subd. 4. State district attorney moved to quash subpoena duces tecum issued by federal grand jury seeking (5) Grand Jury C=36.3(1) production of state grand jury records as part of 193k36.3(1) investigation into whether police officers violated federal criminal civil rights statute when making [5) States C='18.63 zrrests. The District Court, Arcata, 1., held that 360k 18.63 federal grand jury was entitled to transcripts and State statutes which preclude disclosure of state tapes of state grand jury testimony of grand jury records to general public cannot be used uncooperating police officers. to prevent federal grand juries from obtaining records through subpoena. Motion to quash denied. (6J Grand Jury C=36.4(1) West Headnotes 193k36.4(1) Custodian of records, who is proper party for [I] Grand Jury C=2.5 service of federal grand jury subpoena, is person or 193k25 entity who is in actual possession of documents at Grand jury is to be afforded wide latitude in time subpoena is issued. N.Y.McKinney's CPL § conducting its investigation. 190.25, subd. 4. [2) Grand Jury C=36.4(2) (7) Grand Jury C=41.10 193k36.4(2) I93k41.10 Federal grand jury subpoena may not be Basic purposes of New York grand jury secrecy unreasonable or oppressive, it may not violate laws are: to prevent accused from escaping before constitutional, common law or statutory privilege. being indicted; to prevent tampering with Fed.Rules Cr.Proc.Rule 17(c), 18 U.S.C.A. witnesses; and to protect accused person who is not indicted from unwarranted exposure. (3) Grand Jury C=36.9(2) N.Y.McKinney's CPL § 190.25, subd. 4. 193k36.9(2) Federal grand jury subpoenas are presumed to be (8) Witnesses C:=7184(1) reasonable and party seeking to quash subpoena 410k184(1) bears burden of showing that compliance would be Evidentiary privileges protect confidential unreasonable or oppressive. Fed.Rules communications between persons in special Cr.Proc.Rule I7(c), /8 U.S.C.A. relationships from disclosure and are generally disfavored in that privileges impede search for 141 Grand Jury C=36.4(2) truth. 193k36.4(2) Federal grand jury was entitled to subpoena 191 Grand Jury <8=36.3(2) transcripts and tapes of state grand jury testimony of 193136.3(2) police officers as part of investigation to determine When faced with claim that grand jury should be whether officers violated federal criminal civil denied evidence because of privilege, reviewing rights laws during or after arrests; disputed court must weigh potential harm from disclosure testimony was relevant and necect3ry to federal against benefits of disclosure. 3, 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 3501.226-037 CONFIDENTIAL Page 40 of 46 EFTA 00075919 EFTA01249004 824 F.Supp. 330 Page 12 (Cite as: 824 F.Supp. 330, *331) *331 John J. DeFranks, J. Michael Marion, Asst. Following the conclusion of the state trial, the Erie County Dist. Attys. (Kevin Dillon, Erie District Attorney's Office—nredented the case to an County Dist. Auy., of counsel). Buffalo. NY. Erie County grand jury that considered whether the officers' actions durmg and after the arrest of Mr. Russell P. Buscaglia, Asst. U.S. Any. (Dennis C. Aiken and Mr. Johnson constituted violations of Vacco, U.S. Atty.. W.D.N.Y., of counsel). state law. The United States, which was then Buffalo, NY. conducting *332 its own investigation, delayed taking any action in the matter in order to prevent 9 DECISION AND ORDER interference with the state investigation The—Ede_ COurl al— ARCARA, District Judge. • charges against any of the pglice-afficers. As a result, the-state investigation into the police officers' Presently before the Court is a motion to quash a conduct concluded in approximately November, subpoena duce zeta pursuant to Fed.R.Crim.P. 1990. 17, filed by Kevin M. Dillon, District Attorney for Erie County. New York. The District Attorney's When the District Attorney's Office concluded its motion seeks an order from this Court quashing a investigation, the United States conducted an federal grand jury subpoena %r state grand jury independent review of the matter and concluded that records. The parties were given an opportunity to a federal grand jury investigation was.aganzanierl--- brief and argue their respective positions. After After further investigation, evidence was presented reviewing the submissions of the panics and hearing to a federal grand jury in October, 1991. argument from counsel, the Court denies the District Attorney's motion to quash the subpoena. The United States claims that the federal grand jury investigation has reached a logjam because of the BACKGROUND refusal of the police officers to cooperate with the A federal grand jury investigation is currently Federal Bureau of Investigation ("FBi"). being conducted regarding an incident which Moreover, none of the officers who are most occurred on March 8, 1990 in the Main Place Mall, seriously implicated in the investigation submitted Buffalo, New York, involving the arrest of Mark any written reports regarding the alleged incident, Aiken and Steven Johnson by officers of the Buffalo nor did most of the officers who were present and Police Department. Specifically, a federal grand should have witnessed the incident. Thus, the jury is investigating allegations that certain officers United States argues that reviewing the transcripts of the Buffalo Police Department violated federal and tapes of the state grand jury testimony of the criminal civil rights laws during and after the arrest police officers is the only way that it will be able to of Mr. Aiken and Mr. Johnson. (FN1) learn the officers' versions of what happened. FM. The background and focus of the feelers/ The United States initially attempted to obtain the grand jury investiganon is set forth in grater detail state grand jury material through informal means. in an in camera submission of facts surrounding When then efforts failed, a grand jury subpoena the federal grand jury investigation submitted by was issued to the Distriet_Aitornev's Office Am the United States. October b, 1991 for the production of t jury transcripts or tapes o all witnesses who The District Attorney's Office prosecuted Mr. testified in this matter before the Erie County grand Aiken and Mr. Johnson on numerous state jury. At the request of the District Attorney's misdemeanor charges arising from this incident. Office, the return date was delayed until January 8, During the state trial, only two of the six or more 1992, in an effort to facilitate the resolution of this officers who were either involved in or wimessed matter. the incident in question actually testified. Consequently. the state trial shed little light on the officers' versions of the allegations that are the focus of the federal criminal civil rights When further efforts to resolve the matter failed, the District Attorney filed the present motion to quash, raising four objections to the production of S investigation. the stare trend jury material. First, the District Attorney argues that compliance would be 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 3501226-037 CONFIDENTIAL Page 41 of 46 EFTA_00075920 EFTA01249005 ••••• II•VVY ilwif • 'MY MS VJAV CUSS 824 F.Supp. 330 Page 13 (Cite as; 824 F.Supp. 330, •332) unreasonable baniisr it would force him to violate would be unreasonable or oppressive, the District state law relating to grand jury secrecy. Second. Attorney must prove that (.1) "there is no reasonable he argues that the subpoena was served upon the possibility that the category of materials the wrong party. Third, the District Attorney contends Government seeks will produce information relevant that compliance would be unreasonable because it to the general subject of the grand jury's would violate polities of comity. Finally, he investigation;' or (2) the subpoena is too indefinite; contends that the subpoenaed grand jury records are or (3) compliance would be overly burdensome. Id. privileged. After applying these tests to the instant case, the Court finds that the District Attorney is unable to DISCUSSION rebut the presumption that the federal grand jury [1][2](3) It is well-established that a federal grand subpoena is reasonable. jury is to be afforded wide latitude in conducting its investigation. See United States v. R. Enters., [4] Regarding the relevancy question, the United Inc., 498 U.S. 292. 297-98, 111 S.Ct. 772, 726, States has set forth in some detail, both in its motion 112 M.24 795 (1991); Uniled States v. papers and in its in camera submission, the reasons Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 M.2t1 underlying the need for the state grand jury records. 561 (1974). "A grand jury investigation 'is not The United States has been unable to obtain the fully carried out until every available clue has been information contained in the grand jury records tun down and all witnesses examined in every from other sources beem,'te the police officers have proper way to find if a crime has been corn/Dined.' been unwilling to cooperate with the investigation. " Branzburg v. Hayes, 408 U.S. 665, 701, 92 Accordingly, the Court finds that the statements of S.C. 2646. 2667, 33 M.24 626 (1972) (quoting the police officers and other witnesses who testified (Inked States v. Stone, 429 F.24 138, 140 (24 before the state grand jury are relevant and Cir.1970)); In It Grand Jury Subpoena for the necessary to the federal grand jury investigation. Prod. of Certain New York State Sales Tax Records, 382 F.Supp. 1205, 1206 (W.D.N.Y.1974) (quoting It does not appear that the District Attorney Stone, 429 F.24 at 140). in accordance with its challenges the subpoena as being too indefinite or broad mandate to investigate possible criminal overly burdensome. The Court notes that the activity, a federal grand jury has few limitations subpoena is discreet and calls for the production of placed on its subpoena powers. R. Enters.. 498 speafic material stemming from a particular state U.S. at 297-98, 111 S.Ct. at 726. "A grand jury grand jury investigation. Thus, the subpoena is 'may compel the production of evidence or the sufficiently definite. Further, the subpoena does testimony of wimesses as it considers appropriate, not call for the production of an unreasonable and its operation generally is unrestrained by the amount of documents. Consequently, producing technical procedural and evidentiary rules governing the requested material would require minimal effort the conduct of criminal trials.' " Id. (quoting on the part of the District Attorney's Office and Calandra, 414 U.S. at 343, 94 5.O. at 617). The therefore would not be overly burdensome. only restrictions that have been placed upon the grand jury concern reasonableness and privileges. The District Attorney argues that compliance with A grand jury subpoena may not be unreasonable or the subpoena would be unreasonable because it oppressive, and it may not violate a constitutional. would place him in a position where be would be common law or statutory privilege. Branthurg, 408 violating state law provisions relating to grand jury U.S. at 688, 92 S.Ct. at 2660; Fed.R.Crim.13. secrecy. Specifically, the District Attorney argues 17(c). Grand jury subpoenas are presumed to be that N.Y.Crim.Froc.Law § 190.25, subd. 4, reasonable and the party seeking to quash the requires that state grand jury materials be kept subpoena bears the burden of showing that secret and therefore prohibits him from turning over compliance would be unreasonable or oppressive. the subpoenaed grand jury records to the United R. Ewers., 498 U.S. at 300-02, 111 S.Ct. at 728. States. He contends that the only way the United States can gad access to these materials is to file a •333 In this case, the District Attorney contends motion in state court pursuant to that compliance with the subpoena would be N.Y.Crim Proc Law4. 1410-11, cub' 4. The unreasonable. In order to meet his heavy burden ----Court finds this argument without merit. of showing that compliance with the subpoena tt, 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 3501.226-037 CONFIDENTIAL Page 42 of 46 EFTA_00075921 EFTA01249006 • • 0.• IQ 014 824 F.Supp. 330 Page 14 (Cite as: 824 F.Supp. 330, 933) (5) Federal courts have consistently held that stale 1000. 91 S.Ct. 456, 27 M.2.d 451 (1971); In re statutes which preclude disclosure of records to the 1980 United Stales Grand Jury Subpoena Duces general public cannot be used to prevent federal Team. 502 F.Supp. 576, 579-80 (E.D.La.1980); grand juries from obtaining the records through a United States v. Grand Jury fnvesii anon subpoena. The cases of In re Grand Jury F.Supp. 389, 393 (E.D.Pa.1976). Thus, the ease Subpoena for New York State Income Tax Records, law clearly establishes that state law provisions 468 F.Supp. 575 (N.D.N.Y.), appeal dismissed relating to grand jury secrecy do not preclude a 607 F.2d 566 (2d Cir.1979). and In re Grand Jury federal grand jury from obtaining state grand jury Subpoena for the Prod. of Certain New York Stare records pursuant to a subpoena. Sales Tax Records. 382 F.Supp. 1205 (W.D.N.Y.1974). are particularly relevant to the (6) The District Attorney further argues that the ease at hand. Both cases involved federal grand grand jury subpoena was not served upon the proper jury subpoenas issued to officials of the New York party. Specifically, the District Attorney contends State Department of Taxation for the production of that pursuant to the state grand jury secrecy law, certain tax records. The petitioners moved to quash N.Y.Crim.P.Law § 190.25, subd. 4. the state court the subpoenas on the grounds that compliance has the ultimate and exclusive control over the would be in violation of certain secrecy provisions subpoenaed grand jury material and, therefore, is of New York State tax laws. These laws are very the actual custodian of the grand jury records. similar to N.Y.Crim.Proc.Law § 190.25, subd. 4, Thus, the District Attorney argues that the grand which die District Attorney relies on in his motion. jury subpoena should have been served on the The courts in these cases explicitly rejected the presiding state court judge rather than the District argument that compliance was unreasonable because Attorney. The Court disagrees. it would force the state officials to violate state law secrecy provisions. The courts ruled that the A custodian of records is the person or entity who Supremacy Clause must prevail over the state is in actual possession of the documents at the time nondisclosure provisions. As the court in In re the subpoena is issued. In re Grand Jury Impaneled Grand Jury Subpoena for New York Stare Income Jan. 21. 1975, 541 F.24 373, 377 (3d Cir.1976) Tar Records stated: (citations omitted). In order to testify competently The Supreme Court has seven) times indicated as a records custodian, a witness must be able to that. by virtue of the supremacy clause, state verify the authenticity and completeness of the legislation must yield whenever it comes into requested documents. conflict with an Act of Congress or the superior authority of the Constitution. Thus, inasmuch as In this case, the District Attorney does not dispute the federal *334 grand jury is a product of the the fact that his office possesses the requested grand Fifth Amendment and its powers, as a result of its jury material, nor does he deny that the grand jury long history and specific Congressional attention, materials were generated as a result of an the conflict between state confidentiality investigation conducted by his office. provisions and Congressional or constitutional Accordingly, the District Attorney's office is the investigatory powers has resulted in enforcement sole entity that can competently testify as to the of federal grand jury subpoenas despite state authenticity and completeness of the requested statutes which would otherwise prohibit material. The presiding state court judge does not compliance. possess the subpoenaed materials nor would he or In re Grand Jury Subpoena for New York Stare she have any knowledge concerning the authenticity Income Tax. 468 F.Supp. at 577 (citations omitted). or completeness of the grand jury records. Thus, Courts in other Circuits, relying on the Supremacy the Court finds that the District Attorney's Office is Clause, have similarly rejected claims from state the custodian of the sure grand jury records and is officials that compliance with a federal subpoena therefore the proper party to be served with the would force them to violate stale confidentiality subpoena. laws. See, e.g., In re Special April 1977 Grand Jury, 581 F.2d 589, 593 a. 3 (7th Cirajr. The District Attorney also contends that compliance denied, 439 U.S. 1046, 99 S.Ct. 721, 58 M.25 with the federal grand jury subpoena would be 705 (1978); Carr v. Monroe Mfg. Co., 431 F.2d unreasonable because it would violate policies of 384, 388 (5th Cir.1970), car. denied, 400 U.S. comity. Specifically, the District Attorney 4D 2006 Thomsoo/West. No Claim to Orig. U.S. Govt. Works. 3501226-037 CONFIDENTIAL Page 43 of 46 EFTA_00075922 EFTA01249007 824 F.Supp. 330 Page 15 (Cite as: 824 F.Supp. 330,'334) contends that, just as the federal government has an Id. 468 F.Supp. at 578. interest in protecting the secrecy of federal grand jury material, the slam has an interest in protecting Finally, the District Attorney contends that the state grand jury material from disclosure. Thus, motion to quash should be granted because the the District Attorney argues that, in order to show subpoenaed materials are privileged. Specifically. proper deference to the State's interest in the the District Attorney argues that the state grand jury confidentiality of the grand jury records, the United secrecy law creates a federal privilege under States should be required to move initially for Federal Rule of Evidence 501. The Coun finds disclosure before the presiding state court judge. this argument without merit. The Court finds that no such requirement exists. [8] Evidentiary privileges protect confidential [1 The Court recognizes that 'policies of comity communications between persons in special and federalism require some deference to the relationships from disclosure. By their very nature objective sought to be achieved by state they impede the search for the truth and are confidentiality provisions." In re Grand Jury therefore generally disfavored. Trammel v. United Subpoena for New York State Income Tar Records, States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 468 F.Supp. at 577. The basic purposes of the M. 74 186 (1980); Herbert v. Lando, 441 U.S. state grand jury secrecy laws in question are: (I) to 153. 99 S.Ct. 1635, 60 M.2d 115 (1979); prevent an accused front escaping before he is United Stares v. Nixon, 418 U.S. 683, 709-10, 94 indicted; (2) to prevent tampering with witnesses; 5.0. 3090, 3108- 09, 41 M.2d 1039 (1974). and (3) to protect an accused person who is not Accordingly, 'the party asserting a privilege bears indicted from unwarranted exposure. People v. the burden of proving the applicability of the McAdoo, 45 Misc.2d 664, 257 N.Y.S,2d 763, privilege," In re Bevil!, Dressler ti Schulman Asset ofd. 51 Misc.2d 263, 272 •335 N.Y.S.24 412. Management Corp., 805 F.2d 120, 126 ad ten. denied. 386 U.S. 1031, 87 S.Ct. 1479, 18 Cir.1986). and privileges, 'whatever their origins MI.2d 592 (1967). ... [should] not [be] lightly created or expansively construed.' Nixon. 418 U.S. at 710, 94 S.Ct. at In this ease, compliance with the federal grand jury 3109. subpoena will not subvert New York's interest in maintaining the secrecy of grand jury proceedings [9] When faced with a claim that a grand jury because federal grand jury proceedings are also should be denied evidence because of privilege, the conducted secretly. The secrecy requirements of reviewing court must weigh the potential harm from Fen-Ceini.P. 6(e). will adequately ensure that disclosure against the benefits of disclosure. none of the purposes of the state grand jury secrecy American Civil Lthertrts Union of Miss., Inc. v. laws are undermined by compliance with the federal Finch, 638 F.2d 1336, 1343 (5th Cir.1981). In this grand jury subpoena. See In re New York Grand case, the federal grand jury is investigating possible Jury Subpoena for State Income Tax Records, 468 violations of federal criminal civil rights laws by F.Supp. at 577-78; see also United Stares v. Field police officers of the Buffalo Police Department. 532 F.24 404, 407-08 (5th Cir.ISS. cert. denied. As fully explained in the United States' in camera 429 U.S. 940, 97 S.Q. 354, 50 =.2d 309; In re statement of facts, the subpoenaed documents are. Grand July Empaneled Jan. 21, 1975, 541 F.23:1 at vital td the grand jury investigation and arc not 377-78. simply needed to attell credibility of potential witnesses. In addition, the information sought to Moreover, it is important to note that comity is a be obtained from the subpoenaed material is not policy which must be balanced against 'the otherwise available since the police officers are necessity of thorough grand jury investigations into unwilling to talk to the FBI. Thus, the grand jury violations of federal law.' In re Grand Jury may not be able to learn the truth of the allegations Subpoena for New York Stare Income Tax Records. without the subpoenaed mataial. 468 F.Supp. at 577. In this case, the subpoenaed documents are necessary to the federal grand jury On the other side of the scale, the potential harm investigation. Thus, the policy of comity must from disclosure of the state grand jury material is yield to the constitutional right and duty of the minimal. Because Fed.R.Crim.P. 6(e) limits federal grand jury to conduct a broad investigation. disclosure of federal grand jury material, the Ct 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 3501226-037 CONFIDENTIAL Page 44 of 46 EFTA_00075923 EFTA01249008 IVJ V10 824 F.Supp. 330 Page 16 (Cite as: 824 F-Supp• 330, •335) secrecy of the subpoenaed documents would be violates any recognized privilege. Furthermore, closely guarded. Thus, since the benefits of because of the secrecy provisions of the federal disclosure in this case substantially outweigh the grand jury, little or no prejudice would result to the potemtial harm from disclosure, the Court finds that state from compliance with the federal grand jury the state grand jury records are not privileged as a subpoena. matter of federal common law. See Matter of Special April 1977 Grand Jury. 581 F.2d at 592-93: CONCLUSION In re Grand Jury Proceeding, 563 F.2d 577. 582-85 For the reasons stated. the Court denies the District (3d Cir.1977): In re Grand Jury Empaneled Attorney's motion to quash the federal grand jury January 21, 1975. 541 F.2d at 382-83. subpoena. This Decision and Order and the entire in sum, the United SLIMS has a strong interest in file are to be filed under seal. ensuring the just enforcement of its criminal laws. Public policy has long favored giving the grand jury It is so ordered. broad powers of investigation. The District Attorney, who has the burden of proving that the 824 F.Supp. 330 subpoena should be quashed, has failed to establish •336 that the subpoena is unreasonable or that it END OF DOCUMENT © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 3501.226-037 CONFIDENTIAL Page 45 of 46 EFTA_00075924 EFTA01249009 3501.226-037 CONFIDENTIAL Page 46 of 46 EFTA_00075925 EFTA01249010