EFTA00186707

EFTA00186707 U.S. Departme A- Justice U.S. Department of Justice United States Attorney Southern District ofFlorida SOO South Australian Ave., Suite 400 West Palm Beach F September 5, 2006 Grand Jury Coordinator State Attorney's Office 15th Judicial Circuit of Florida West Palm Beach, Florida Re: Federal Grand Jury Subpoena Dear Ms. Thank you for your assistance regarding the transcript of the proce edings from the State's grand jury related to Jeffrey Epstein. I have done some additional resear ch regarding the procedures for obtaining the tapes or transcripts from those proceedings.' 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. From my conversatio ns with you and your staff, you currently possess the materials. I reviewed the state statutes governing the release of grand jury transc ripts, and both Sections 905.17(1) and 905.27 refer to the.release of the transcripts upon an order of "a court;" they do not specify that the order must be issued by the Palm Beach County Court. The cases that I have enclosed both involve orders issued by a federal court that compel the production of the transcripts. If you feel that you must file a motion to quash the grand jury subpo ena, or if you would like to state in writing your inability to produce the transcript absent a court order , we can proceed before the United States District Judge who empaneled the federal grand jury. If you prefer to proceed by motion, I can assist in notifying the Court of the motion, which should be filed ex parte and under seal in accordance with the Federal Rules of Criminal Procedure. If, instead, you prefer to proceed by stating in writing that you cannot produce the items without a court order, I can file a Motion to Compel with a proposed order for the United States District Judge to sign. 'From our conversation and my conversation with , it appears that the proceedings may not yet have been transcribed. The enclosed subpoena calls for the tapes or the transcripts. If you would prefer to produce the tapes to be transc ribed by one of our grand jury stenographers, that would satisfy the subpoena. EFTA00186708 GRAND JURY COORDINATOR SEPWAKBER5,2006 FA0132 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 know. 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 Agent F.B.I. EFTA00186709 United States District Court SOUTHERN DISTRICT OF FLORIDA TO: CUSTODIAN OF RECORDS SUBPOENA TO TESTIFY STATE ATTORNEY'S OFFICE 15th Judicial Circuit of Florida BEFORE GRAND JURY Palm Beach County FGJ 05-02(WPB)-Fri./No. OLY-10/2 SUBPOENA FOR: n PERSON X DOCUMENTS OR OBJECTISI YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. t PLACE: ROOM: Room 4-A I Palm Beach County Courthouse Juvenile Courts Building 205 N. Dixie Highway DATE AND TIME: West Palm Beach, Florida 33401 (Temporary location for the United States District Courthouse, West Palm Beach) September 15, 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 before the Grand Jury on Wednesday, July 19, 2006, referring or relating to Jeffrey Epstein and/or S 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 coordi • of this subpoena and confirm the date and trance 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 DATE: August 28, 2006 (BY) DEPUTY CLERK This subpoena is issued upon application ne Address and Phone Number of Assistant U.S. Attorney of the UnitctStates of men' , o. Us ra We -6235 Fax •If not applicable. enter "none." rout iv, 11c0 of A0110 FORM ORD-227 EFTA00186710 824 F.Supp. 330 824 F.Supp, 330 Page 11 (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 Duces 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 County. 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(e), 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 [5J Grand Jury C=36.3(1) production of slate 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 arrests. The District Court, Arcara, J., held that 360k18.63 federal grand jury was entitled to transcripts and State statutes which preclude disclosure of slate 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. [6] Grand Jury €36.4(1) West Headnotes 193k36.4(1) Custodian of records, who is proper party for [1] Grand Jury C=25 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) 193k41.10 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; Fed.Rules Cr.Proc.Rule 17(c), 18 U.S.C.A. to prevent tampering with witnesses; and to protect accused person who is not indicted from unwarranted exposure. [3] Grand Jury eft=a36.9(2) N.Y.McKinney's CPL § 190.25, subd. 4. 193k36.9(2) Federal grand jury subpoenas are presumed to be [8] Witnesses C=184(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 17(c), 18 U.S.C.A. relationships from disclosure and arc generally disfavored in that privileges impede search for [4] Grand Jury C=36.4(2) truth. I93k36.4(2) Federal grand jury was entitled to subpoena [9] Grand Jury tS=36.3(2) transcripts and tapes of state grand jury testimony of 193k36.3(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 necessary to federal against benefits of disclosure. © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186711 824 F.Supp. 330 (Cite as: 824 F.Supp. 330, *331) Page 12 •331 John J. DeFranks, J. Michael Marion, Asst. Following the conclusion of the state trial, the Erie County Dist. Attys. (Kevin Dillon, Eric District Attorney's Office presented the case to an County Dist. Atty., of counsel), Buffalo, NY. Erie County grand jury that considered whether the officers' actions during and after the arrest of Mr. Russell P. Buscaglia, Asst. U.S. Atty. (Dennis C. Aiken and Mr. Johnson constituted violations of Vasco, 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 DECISION AND ORDER interference with the state investigation. The Erie County grand jury declined to return criminal ARCARA, District Judge. charges against any of the police officers. 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 duces !cum, 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 for 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 warranted. brief and argue their respective positions. After After further investigation, evidence was presented reviewing the submissions of the parties 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. [FNI] learn the officers' versions of what happened. FNI. The background and focus of the federal The United States initially attempted to obtain the grand Jury investigation is set forth in greater detail state grand jury material through informal means. in an la camera submission of facts surrounding the federal grand jury investigation submitted by When these efforts failed, a grand jury subpoena the United States. was issued to the District Attorney's Office on October 25, 1991 for the production of the grand The District Attorney's Office prosecuted Mr. jury transcripts or tapes of all witnesses who Aiken and Mr. Johnson on numerous state testified in this matter before the Erie County grand misdemeanor charges arising from this incident. jury. At the request of the District Attorney's During the state trial, only two of the six or more Office, the return date was delayed until January 8, officers who were either involved in or witnessed 1992, in an effort to facilitate the resolution of this the incident in question actually testified. matter. Consequently, the state trial shed little light on the When further efforts to resolve the matter failed, officers' versions of the allegations that are the the District Attorney filed the present motion to focus of the federal criminal civil rights quash, raising four objections to the production of investigation. the state grand jury material. First, the District Attorney argues that compliance would be O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186712 824 F.Supp. 330 (Cite as: 824 F.Supp. 330, '332) Page 13 unreasonable because 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 policies 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. 722, 726, States has set forth in some detail, both in its motion 112 L.Ed.2d 795 (1991); United States v. papers and in its in camera submission, the reasons Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 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 run down and all witnesses examined in every from other sources because the police officers have proper way to find if a crime has been committed.' 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.Ct. 2646, 2667, 33 L.Ed.2d 626 (1972) (quoting the police officers and other witnesses who testified United States v. Stone, 429 F.2d 138, 140 (2d before the state grand jury are relevant and Cir.1970)): In re Grand Jury Subpoena for the necessary to the federal grand jury investigation. Prod, of Certain New York State Sales Tax Records, 382 P.Supp. 1205, 1206 (W.D.N.Y.1974) (quoting It does not appear that the District Attorney Stone, 429 F.2d at 140). In accordance with its challenges the subpoena as being too indefinite or broad mandate to investigate possible criminal overly burdensome. activity, a federal grand jury has few limitations The Court notes that the subpoena is discreet and calls for the production of placed on its subpoena powers. R. Enters., 498 specific material stemming from a particular state U.S. at 297-98, 111 5.O. 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 witnesses 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 he would be common law or statutory privilege. Branzburg, 408 violating state law provisions relating to grand jury U.S. at 688, 92 S.Ct. at 2660; Fed.R.Crim.P. secrecy. Specifically, the District Attorney argues 17(c). Grand jury subpoenas are presumed to be that N.Y.Crim.Proc.Law § 190.25, subd. reasonable and the party seeking to quash the 4, 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. Enters., 498 U.S. at 300-02, 111 S.Ct. at 728. States. He contends that the only way the United States can gain 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.Law § 190.25, subd. 4. The unreasonable. In order to meet his heavy burden Court finds this argument without merit. of showing that compliance with the subpoena 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works . EFTA00186713 824 F.Supp. 330 Page 14 (Cite as: 824 F.Supp. 330, *333) [5] Federal courts have consistently held that state 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971); In re statutes which preclude disclosure of records to the 1980 United States Grand Jury Subpoena Duces general public cannot be used to prevent federal Tecum, 502 F.Supp. 576, 579-80 (E.D.La.1980); grand juries from obtaining the records through a United States v. Grand July Investigation, 417 subpoena. The cases of In re Grand Jury F.Supp. 389, 393 (E.D.Pa.1976). Thus, the case 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 State 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 case 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 the 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 State Income Jan. 21, 1975, 541 F.2d 373, 377 (3d Cir.1976) Tax Records stated: (citations omitted). In order to testify competently The Supreme Court has several 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 State she have any knowledge concerning the authenticity Income Tax, 468 FSapp. at 577 (citations omitted). or completeness of the grand jury records. Thus, Courts in other Circuits, relying on the Supremacy the Court fords that the District Attorney's Office is Clause, have similarly rejected claims from state the custodian of the state 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 state confidentiality subpoena. laws. See, e.g., In re Special April 1977 Grand Jury, 581 F.2d 589, 593 n. 3 (7th Cir.), cert. The District Attorney also contends that compliance denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 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), cert. denied, 400 U.S. comity. Specifically, the District Attorney © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186714 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 state 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 Court 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 [7] 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. Tranunel v. United Subpoena for New York State Income Tax Records, States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 468 F.Supp. at 577. The basic purposes of the L.Ed.2d 186 (1980); Herbert v. Lando, 441 U.S. state grand jury secrecy laws in question are: (1) to 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); prevent an accused from escaping before he is United States v. Nixon, 418 U.S. 683, 709-10, 94 indicted; (2) to prevent tampering with witnesses; S.Ct. 3090, 3108- 09, 41 L.Ed.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!, Bressler & Schubnan Asset aff'd, 51 Misc.2d 263, 272 *335 N.Y.S.2d 412, Management Corp., 805 F.2d 120, 126 (3d cert. denied, 386 U.S. 1031, 87 S.Ct. 1479, 18 Cir.1986), and privileges, "whatever their origins L.Ed.2d 592 (1967). ... [should] not [be] lightly created or expansively construed." Nixon, 418 U.S. at 710, 94 5.O. at In this case, 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 Fed.R.Crim.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 Liberties Union of Miss., Inc. v. laws are undermined by compliance with the federal Finch, 638 P.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 States v. Field, police officers of the Buffalo Police Department. 532 F.2d 404, 407-08 (5th Cir.1976), cm. denied, As fully explained in the United States' in camera 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309; In re statement of facts, the subpoenaed documents are Grand Jury Empaneled Jan. 21, 1975, 541 F.2d at vital to the grand jury investigation and are not 377-78. simply needed to assess 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 State Income Tax Records, without the subpoenaed material. 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 Pcd.R.Crhn.P. 6(e) limits federal grand jury to conduct a broad investigation. disclosure of federal grand jury material, the O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186715 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 potential harm from disclosure, the Court fords 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 July Proceeding, 563 F.24 577, 582-85 For the reasons stated, the Court denies the District (3d Cir.1977); In re Grand Jury Ernpaneled 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 States 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 (0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186716 832 F.2d 554 832 F.2d 554, 24 Fed. R. Evid. Serv. 275 Page 1 (Cite as: 832 F.2d 554) 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 tE , 36.9(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 Dec. 10, Fed.Rules Cr.Proc.Rule 6(e), 18 U.S.C.A. 1987. [5] Grand Jury C=41.10 Persons whose state 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] Witnesses C=184(I) Middle District of Florida, Nos. MISC-J-86.183-14, 410k184(1) 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, Tjoflat, 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. Elizabeth L. White, Sheppard & White, William Affirmed in part and dismissed in part. Sheppard, Jacksonville, Ha., for McQuaig. West Headnotes Lacy Mahon, Jr., Jacksonville, Ha., for appellants. [1] Criminal Law Cr 1023(3) Robert W. Merkie, Curtis S. Fallgatter, M. Alan 1101(1023(3) Ceballos, 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 4=1023(3) Before TJOFLAT and KRAVITCH, Circuit 110k1023(3) Judges, and TUTPLE, 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 €1023(3) grand jury. We affirm. 110k1023(3) When party has been subpoenaed to testify or produce records for grand jury and third-party I. 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 O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186717 832 F.2d 554 (Cite as: 832 F.2d 554, *555) Page 2 influence peddling by certain public officials of the ruling against disclosure. City of Jacksonville. Witnesses appearing before Greene and McQuaig 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: Jake 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 had received similar voluntarily. assurances, but stated that he was entitled to intervene because "state grand jury proceedings No criminal charges resulted from the state grand fare] 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. [FN2] process of awarding contracts for professional services. Godbold, McClure, McQuaig, and PN2. Godbold and McClure also based their Greene each waived his right under Fla.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. III, him. 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 federal grand jury. Relying on the disclosure quash. Applying the balancing test set forth in provisions of Fla.Stat. § 905.27(1)(c) (1985), [F1141] Douglas Oil Co. v. Petrol Stops Northwest, 441 the United States in August 1985 petitioned a state U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979), judge to order the State Attorney to turn over to the 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 no factual submission in support of its petition. The state Twenty-eight days after the court granted the judge refused to enter the order, characterizing the motions to quash, the United States filed a "Motion 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. PI41. Under this provision, a court may order The district court questioned the procedural disclosure of grand jury testimony for the purpose correctness of the government's motion for of effiurthering justice." reconsideration, and stated that under ordinary circumstances it would not consider the motion. In In October 1986, the federal grand jury issued a 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 subpoena, arguing that disclosure of on the strength of the information contained in the grand jury transcripts was unlawful under Florida 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 context of the required the district court to honor the state court's government's motion for reconsideration. After O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186718 832 F.2d 554 Page 3 (Cite as: 832 F.2d 554, *556) 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). Just U.S.C. § 1292(b) (1982 & Supp. 11 1984), and this in terms of the plain meaning of words, it scents 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 Cobbledick v. United States, 309 U.S. 323, 60 contends, the thirty-day limit of 18 U.S.C. § 3731 S.Ct. 540, 84 L.Ed. 783 (1940), decided eighteen (1982 & Supp. II 1984). Second, appellants argue years before Congress enacted section 1292(b), the that the district court's 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 "PR 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 L.Ed.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(6), 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 (11t6 criminal cases."). Cir.1986), cen. denied, 481 U.S. 1039, 107 S.Ct. 1979, 95 L.Ed.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 finds 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[s] 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 criminal cases. See United States v. Doucet, 461 controlling question of law' to civil cases only and, F.2d 1095 (5th Cir.1972); United States v. Lowe, therefore, should not be read to allow interlocutory 433 F.2d 349 (5th Cir.1970). Therefore, we have review of grand jury proceedings."), cen. denied, no jurisdiction to hear this appeal pursuant to 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492 section 1292(b) unless the district court's order (1979). it 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186719 832 F.2d 554 Page 4 (Cite as: 832 F.Zd 554, *558) [2] 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 arc ordinarily not to quash is a final order as far as appellants are appealable fmal orders under section 1291. The concerned. We therefore have jurisdiction to hear subpoenaed party can obtain review by refusing to their appeal. [F143] comply with the subpoena and then contesting a contempt citation, which is immediately appealable. FN3. We note that the only material sought from See United States v. Ryan, 402 U.S. 530, 532-33, the subpoenaed party in this case is material that 91 S.Ct. 1580, 1582, 29 L.Ed.2d 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, then, where a not open to a third party who claims a privilege of party has been subpoenaed to testify or produce records and a third party merely fears that nondisclosure with respect to materials in the privileged material may be disclosed along with custody of the subpoenaed party. In such a case, other, nonprivileged material. In the latter the putative privilege-holder has no power to situation, the case is not ripe for appellate review compel the subpoenaed party to incur a contempt until the subpoenaed party has actually been asked citation. And the subpoenaed party, unless he has to reveal specific material covered by the asserted either a particularly close relationship to the putative privilege. See In re Grand Jury Proceedings (Doe privilege-holder or a personal interest in ), 831 F.2d 222 (11th Cir. 1987). nondisclosure of the material, is unlikely to risk a contempt citation simply to vindicate the rights of III. the third party. 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 defied 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 integrity of the Florida grand Perlman exception to the general rule prohibiting jury system. However, the only matter that the interlocutory appeal of orders denying motions to Perlman exception gives us jurisdiction to review is quash grand jury subpoenas. See In re Grand Jury the appellants' claim of privilege to prevent Proceedings (moist), 689 F.2d 1351 (11th Cir.1982) disclosure of their state grand jury testimony. ; In re Grand Jury Proceedings (Fine), 641 P.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 P.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.Ct. Perlman exception simply are not present. Here, 417, 62 L.Ed. 950 (1918), and confirmed in United to the extent that their objections to disclosure are States v. Nixon, 418 U.S. 683, 691, 94 S.Ct. 3090, based on concerns relating to comity and the 3099, 41 L.Ed.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 party had no to the injured third party who is otherwise interest in seeking to vindicate their derivative powerless to prevent the revelation." Fine, 641 rights. Indeed, the subpoenaed party--the State of F.2d at 202. Florida as represented by the State Attorney-- had as its primary interest the protection of its grand [3] The circumstances supporting application of the jury system. Accordingly, the Perlman exception Perlman exception are present in this case. does not 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 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186720 832 P.2d 554 Page 5 (ate as: 832 F.2d 554, *559) those matters and we turn to appellants' claims of cause or permit to be published, broadcast, privilege. disclosed, divulged, or communicated 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 Perlman 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 court. a criminal case, it may be disclosed to the prosecuting attorney of the court in which such The appellants' motions to intervene in the district criminal case 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 attorney, and by the latter to that "Mrior to appearing before the [state] Grand his legal associates and employees. When such Jury, Mr. McQuaig was advised by the State disclosure is ordered by a court pursuant to Attorney that pursuant to Section 905.27, Fla.Stat. subsection (I) for use in a civil case, it may he (1985): a) none of the testimony he provided to the disclosed to all parties to the case and to their attorneys and by the latter to their legal associates Grand Jury was disclosable under the law; and b) and employees. However, the grand jury any disclosure of said testimony was a crime." testimony afforded such persons by the court can 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 section shall affect the attorney- stated that "testimony was provided with the client relationship. A client shall have the right to understanding on the part of Jake Godbold that communicate to his attorney any testimony given pursuant to § 905.27 of the Florida Statutes, his by the client to the grand jury, any matters testimony would not and could not be disclosed involving the client discussed in the client's under the law." Finally, appellant McClure's presence before the grand jury, and any evidence involving the client received by or proffered to the motion stated that "[t]he substantial interest of Don grand jury in the client's presence. McClure is equal to or greater than that of the two (4) 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 fine 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 shall constitute secrecy requirement. The statute imposing that criminal contempt of court. requirement provides as follows: (1) 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 common 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 appellants 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 the 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). [FN5] (E.D.N.Y.); cf. ACLU v. Finch, 638 F.2d 1336, 134245 (5th Cir. Unit A Mar. 1981). FNS. The remainder of section 905.27 provides as follows: F146. 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 secrecy. That presumption, which is codified in 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186721 • 832 F.2d 554 Page 6 (Cite as: 832 F.2d 554, *560) Fed.R.Crim.P. 6(e), 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 state grand jury merely to suit the purposes of the parties before it. testimony. FI47. 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 fmd 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 cannot law. We fmd no evidence that the Florida courts he used as the basis of a defamation action. See, derive an evidentiary privilege from Fla.Stat. e.g., State v. Mat, 111 So.2d 716 905.27. Indeed, the Florida Supreme Court has (Fla.Disr.Ct.App.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 for 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. State ex rel. Brown v. Dewell, 167 So. 687, 690 (F1a.1936). Florida case law directly construing AFFIRMED in part; DISMISSED in part. section 905.27 fails to provide a contrary interpretation of the relationship between the 832 F.2d 554, 24 Fed. R. Evid. Serv. 275 secrecy requirement and the rights of grand jury witnesses. [F1‘17] Accordingly, we conclude that END OF DOCUMENT 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186722 United States District Court SOUTHERN DISTRICT OF FLORIDA TO: CUSTODIAN OF RECORDS • SUBPOENA TO TESTIFY 15th Judicial Circuit of Florida Palm Beach County Courthouse BEFORE GRAND JURY 205 North Dixie Highway FGJ 05-02(WPB)-Fri./No. OLY-10 West Palm Beach, FL 33401 SUBPOENA FOR: n PERSON DOCUMENTS OR OBJECT[S] YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District 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): Transcripts of any and all proceedin s before the Grand 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 coordinate our com liance of this subpoena and confirm the date and time of our a ranee with Special Ag Federal Bureau of Investigation, Telephone: Please see additional information on reverse This subpoena shall remain in effect until you arc granted leave to depart by the court or by an officer acting on behalf of the court. DATE: August 2, 2006 • This subpoena is issued upon application S. of 500 So. Australian Avenue, Suite 400 Attorney West Palm Beach. FL 33401-6235 •ifnot applicable, altar "none." To is used at Ike MAO FORM ORD-227 EFTA00186723 United States District Court SOUTHERN DISTRICT OF FLORIDA TO: CUSTODIAN OF RECORDS SUBPOENA TO TESTIFY STATE ATTORNEY'S OFFICE 15th Judicial Circuit ofFlorida BEFORE GRAND JURY Palm Beach County FGJ 05-02(WPB)-Fri./No. OLY-10/2 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECTISI YOU ARE HEREBY COMMANDED to appear and testify before the Grand Juryofthe United States District 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 DAM AND TIME: (Temporary location for the United States District Courthouse, West Palm Beach) September 15, 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 before the Grand 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 coordinate our ccnn l lance of this subpoena and confirm the date and time of your appearance with Special Agent Federal Bureau ofInvestigation, 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. CLERIC DATE: August 28, 2006 This subpoena is issued upon application Name, Address and Phone Number of Assistant U.S. Attorney of the U States of men 500 So. Australian Avenue, Suite 400 West Palm Beach, FL 33401-6235 Tel: Fax: *If not applicable, enter "none." To be ml idle. orA0110 FORM ORD.227 EFTA00186724 OFFICE OF THE STATE ATTORNEY FIFTEENTHJUDICIALCIRCUTTOPFLORIDA IN AND FOR PALM BEACH COUNTY STA Ili ATTORNEY September 12, 2006 Grand Jury Coo orator 500 S Australian Ave Suite 400 West Palm Beach, FL 33401-6235 Re: Duces Tecum Subpoena DearMI This letter is in response to your letter of September 5, 2006 and your subpoena to the Custodian of Records, State Attorney's Office to appear before the Federal Grand Jury duces tecum tapes and transcripts. Your letter contains a completely false assumption on your part. Please be advised that I am not a records custodian for the Office of the State Attorney. I am an Assistant State Attorney assigned as the legal advisor to the Grand Jury. The Clerk of the Court, in conjunction with the Court Reporter, maintains custody of these records. I do not possess any tapes or transcripts of any of the proceedings before the Grand Jury on Wednesday, July 19, 2006 relating to the Jeffrey Epstein investigation. Further, the Office of the State Attorney does not possess any tapes or transcripts of the proceedings before the Grand Jury on Wednesday, July 19, 2006 relating to the Jeffrey Epstein investigation. Your special agents who delivered the paperwork asked that I not disclose that I received this paperwork. However, this request is not possible as the State of Florida is a ublic records State. Additional) , I must disclose the receipt of this paperwork to the in and for Palm Beach County nd my staff. Mary Ann uggan Assistant State Attorney cc : 401 N. Dixie Highway. West Palm Beach. Florida 33401-4209 EFTA00186725 U.S. Department of Justice United States Attorney Southern District of Florida 500 South Australian Ave., Suite 400 West Palm Beach, FL 33401 September 14, 2006 DELIVERY BY NITS TATES MAIL Assistant State Attorney State Attorney's Office 15th Judicial Circuit of Florida West Palm Beach, Florida Re: Federal Grand Jury Subpoena Dear Ms. Thank you for your letter of September 12, 2006. As I mentioned in my voicemail message of September 13, 2006, prior to the issuance of the grand jury subpoena, I had received information from your office and the Clerk and Comptroller's Office that you had physical possession of the items sought by the subpoena. Based upon your statements to the agents, I investigated further and learned that the Clerk and Comptroller's Office now has the items. Accordingly, the State Attorney's Office is released from its obligation to appear before the grand jury and to produce any items in response to the subpoena. Regarding the disclosure of the receipt of the subpoena to the State Attorney, Mai= was told of the existence of the subpoena before it was served and there is no bar to disclosing the subpoena to him — it is addressed to the State Attorney's Office. The federal law regarding disclosure of matters occurring before the grand jury appears at Rule 6 of the Federal Rules of Criminal Procedure. Thank you for your assistance. Sincerely, R. Alexander Acosta By: III= EFTA00186726