EFTA01699638

pr3:176;• A4 it4 10 ft9 4- 'W-al . E EFTA01699638 7/5/ 2-Di • FIN - Shad Charge Out FD-5 (Rev. 10-13-89) Date / 1/2-D/ Fae/143Cm. a /0 qz.°2_ Lau &idol 0 Pending 0 Closed 1/9 es)) -2/9/ b- •24, p nent tom 0 004 Employee RECHARGE Date To From Ae 1 Date charged Employee Location FTI.ROK EFTA01699639 BOI ES, SCHI LLER & FLEXNER LLP 401 EAST LAS OLAS BOULEVARD• SUITE 1200• FORT LAUDERDALE, FL 33301-2211• PH. 954.356.0011 • FAX 954.356.0022 Sigrid S. McCawley, Esq. Email: smccawley@bsfilp.com February 26, 2015 Via Federal Express Federal Bureau of Investigation Attn: FM/PA Request Record/Information Dissemination Section 170 Marcel Drive Winchester, VA 22602-4843 Federal Bureau of Investigation Department of Justice 505 S. Hagler Drive, Suite 500 West Palm Beach, Florida 33401 Ann: FOIA Officer RE: FOIA Requestfor pictures, videos and documents relating to Dear FOIA Officer, I 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. 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 es CDs and DVDs, pictures and documents, that include video tapes of pictures of and documents (including but not limited to e-mails and other recordsdiscussing It is our understanding that these images include naked images of and included images of 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 • WWw.BSFLLP.COH 3i er: - Milt - /O qt*,1 - .2 55 EFTA01699640 • • BOIES, SCHILLER & FLEXNER LLP Letter to Federal Bureau of Investigation February 26, 2015 Page 2 3) 9 E. 7151 Street New York, NY 10021-4102 4) 49 Zorro Ranch Rd. Stanley, New Mexico 87056 5) 22 Avenue Foch Apt 2DD Paris, France 75116 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 such that records can be released to Sigrid McCawley, her attorney. Sincerely, Sigrid S. McCawley SSM Enclosures EFTA01699641 • EXHIBIT A EFTA01699642 • -1 of 12 - • FD.302 (Rev. 5-8-10) FEDERAL BUREAU OF INVESTIGATION ruswamtry 07/05/2013 maiden name date of birt4IIIIIIIII Social Security Account Number United States Citizen and , residence Australia, 2261 was interviewed at the United States Consulate in Sydney, Australia. was advised of the identity of the interviewing agents and purpose of the interview. Present during the interview was Federal Bureau of Investigation Special Agent b6 land via telephone, Assistant b7C United States Attorney provided the following information: was born in to parents! date of birth! b6 currently resides in land! !date of birth b7C currently resides inl moved II and while living on the streets in Miami, Florida, she me BE b7C !was training to be an escort ]gave a life off of the streets which made her feel Investigationon 03/17/2011 at Sydney, Australia (In Person) nku 31E-MM-108062 patectraftW 07/05/2013 b6 b7C bY This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. EFTA01699643 FO-302a (Roy. 05-08-10) • • 31E-MM-108062 Continuation ofFD-302 of ,On 03/17/2011 n ee 2 of 12 like she was locked into the relationship' gave pharmaceutical drugs toward the end of their relationship. b6 b7C relationship with ended while she was at a private ranch near Ocala, Florida. telephonically contacted a childhood friend,' from a telephone at the ranch. - b6 knew) (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 V was staying in at the ranch' did not strike herl 'pack her belongings and told her she was going to live with another man. b6 felt that she was sent toF lout did not know tr b7c specifics of the arrangement. engaged in sexual activity with l who was described as a white male stayed with stated LNU for I 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 August, was reading an anatomy/massage book and was approached by b6 b7c land help her get her masseuse accreditation. consulted her father about the opportunity and at approximately 5:00 p.m. the same day, her father drove her to a residence at EFTA01699644 FD-3Magtsv.0!WM-10 • • 31E—MM-108062 Coroimmion of FD•302 of O„ 03/17/2011 hire 3 of 12 Florida. spoke with ather and told him it was a wonderful opportunity for b6 'also known as was led b7C upstairs' Once upstairs in b6 to wash her hands prior to b7C instructed beginning the massage The massage begs demonstrated massage techniques to During the course of the massage, estioned 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' 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. phone number was given tol EFTA01699645 Fc(402a (Rev. 05-0840) • • 31E—!.64-106062 Continuation ofFD402 of On 03/17/2011 . page 4 of 12 The same routine and pattern of massages and sexual activity between and continued for between one and two weeks. At b6 times b7C lettered 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 and was introduced asl 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 trips. During those trips,' Six to nine months after began working for as introduced tcl in b6 'Florida. b7c fat the time. met the couple at a condominium next to the (The condominium was bought' and was a 'In the condominium, provided a normal massage t NU. Shortly thereafter,' 'AU provided an erotic massage to IIIIIIIIIII and l cleaned She was paid cash lin addition, was 16 years old at the time advised' introduced her to the drug Xanax. She explained that Xanax helped her escape from reality but allowed her to b6 b7C still function normally. Xanax helped her go forward with what she was doing with' 'and 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 International Airport to) b6 'by commercial airline. was picked up at the b7C airport byl land then taken to the island by boat. EFTA01699646 FD-302a (Av. 05-08-ID) • • 31E-MM-108062 Continuation of FD-302 of 44, 03/17/2011 J ose 5 of 12 pointed out that b6 to entertain the 'instructed b7C client' land wanted to ride jet skis and participate in other island activities' spent two days on the island with the client. assumes the client also traveled commercially. During the following several months, traveled internationally Prior to her traveling abroad bssisted in getting her passport got passport photographs of herself and b6 provided them t remaining paperwork was taken care of by b7C I IIIIII traveled to Paris, France, the South of.France, London, England, Africa, and Spain. While in Paris, recalled stayin tel overlooking the Champs-Elysees. While traveling, travel POItraveled on a lack plane. During the international A times, would' Rarely a day would pass 'contacted through b6 land wanted to talk to b7C offered a contract. agreed to the contract for her story and was paid 8140,000 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' 'with detailed informatio b6 b7C b6 b7C EFTA01699647 RD4Wo(tto.054M40) • 31E—MM-108.062 Continuation of FD•302 of Mn 03/17/2011 page 6 of 12 b6 b7c I I At age 16, met b6 believed she and were b7C approximately the same age. an b6 b7C would dress b6 b7C I though explained provided an b6 I b7C flIIIIIII described} An unknown individual saw when she arrived at b6 b7C haat said that day was a low stage in her relationship because she could not believe never EFTA01699648 Fp-302“Rve.05.0840 • • 31E—MN-108062 Continuation of FD402 of ,on 03/17/2011 Jain 7 of 12 saw" believed the girls may have been but I b6 b7C was not certain of" '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 which was where stayed. While in New York, also stayed at an apartment on 66th street as aware of 'additional b6 apartments in the same building. According to Ithe b7C apartment building on 66th street was owned byl 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 ini 1 b6 b7C EFTA01699649 Manimmi.osm40 31E-MM-108062 Conlinuaiion ofFD-102 of ,on 03/17/2011 J*0 8 of 12 LNU and went shopping together and purchased clothing and sex toys. IIIIIII/ xp explained that) I b6 b7C 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, Ibut she could b6 not recall the wording. k.NU. b7C advised, traveled) to a self-help conference at a hotel in b6 New Orleans, Louisiana. The hotel was near the H d Rock Café in New b7C Orleans. traveled the world) including the USVI, New York, Santa Fe, Palm Beach, France, Africa, Spain and the United Kingdom. b6 ecalled visiting b7C Alhambra Castle in Spain. eventually traveled to the United Kingdom and EFTA01699650 • FD-302a (Rev. 05-08-10) • 31E-MM-108062 Continuation ofFD-302 of .0, 03/17/2011 pne 9 of 12 while there' approached in a very excited manner and told her they had to go shopping Co pick out a dress because IIIIIII would be b6 dancing with b7C and' went shopping and purchased makeup, clothing, and a Burberry bat . The items were purchased with b6 and; returned) 1 b7C instructed to get ready. When came down after getting ready, she was introduced to raveled to CLUB TRAM danced at CLUB TRAMP" !stayed at CLUB TRAMP for an hour or hour and a half and drank a couple of cocktails before returning td had not received any direction from After returning t4 requested' Ito take a photograph of her' 111111111i- 1i 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, INN met' lat b6 b7C recalled' LNU, recalled' 'joking about trading in because she was getting too old. EFTA01699651 FDa302a (ici. 05-08.10) 31E-MM- , On 03/17/2011 b hp 10 of 12 Continuationof FD-302 of 1,6 was using Xanax heavily at the time, Inc ls She remembered there were many mode and her recollection was not c ear. n who English along with a modeling perso on the island that did not speak had an unknown accent. b6 b7C using prescription drugs. id not have a problem with was escribed by IIIIIII as a b6 b7C I (TRUE NAME UNKNOWN) I I b6 a ranch employee inl Abut l She did have a photogra ph of the ranc h b7C could not recall his name. employee. (including met numerous famous people b6 s. She me 'anal academics, politicians, and celebritie b7C l andl received many gifts including jewelry, watches, b6 11i bags, shoes, make up, clotI and home furnishings. b7c I left all of the items behind when she traveled to Thailand to receive massage training. kok, In August 2002, traveled by commercial airline to Bang at Internationa l Trai ning Massage Thailand and began her massage training d at i hsr maggot's certification. She staye School(ITM) where she received the Princess Hotel in Thailand' I pil l' met her futu re husba nd,) but never did. b6 . contacted' 'telephonically and b7c during her visit to Tha hnlri him she had fallen in love wi someone. I I 1 EFTA01699652 F0-Heametms-0440 • • 31E—MM —108662 Continuation of FD-302 of On 03/17/2011 pogo 11 of 12 had not heard from received a b6 telephone call from[ 'During that call] I 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 andl 'contacted F h i lly.' teeponca l b6 I b7C was using a cellular telephone belonging to her husband. She nor her husband could recall the telephohe 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 24 LNU, 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: EFTA01699653 • , • .. FD-302a (Rev. 05-08-10) • 31E-MM-108062 Continuation ofFD-302 of on 03/17/2011 m ge 12 of 12 Page 1, number 4 Page 2, numbers 7 and B 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 (CEP} Patrol records of her entries into the United States, advised that her January 2001 record was the return from her London, England trip 'The April 2001 CBP b6 record was her return to the United States' b7C ould 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, SAl land b6 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 IA envelopes of case file. EFTA01699654 s • FORM APPROVED OMR NO. 11034116 EXPIRES 03.0 WI? Privacy Act Statement. In accordance with 28 CFR Section 16.41(d) personal data sufficient to identify the individuals submitting requests by mail under the Privacy Act of 1974, 5 U.S.C. Section 352a. is required. The purpose of this solicitation is to ensure that the records of individuals who are the subject of U.S. Department of Justice systems of records are not wrongfully disclosed by the Department Requests will not be processed if this information is not furnished. False information on this form may subject the requester to criminal penalties under 18 U.S.C. Section 1001 and/or 5 U.S.C. Section 5523(1X1). 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 Proj Full Name of Requester I Citizenship Status 2 U .5 . eA. Social Security Number 3 Current Address all_LOSA. CA lope &do Date of Birth Place of Birth OPTIONAL: Authorization to Release Information to Another Person This form is also to be osenethed by a rates= seas is azthorizing information relating to himselfor herself to be released to another person. Further, pursuant to S U.S.C. Set 55:2t19- t actherize the U.S. Department of Justice to release any and all information relating to me to: I declare under penalty of perjury indeed-Ara-star& Unrad States of America that the foregoing is true and cotta, and that I am the person named above, and! undersrad that =t-y statement is punishable under the provisions of IS U.S.C. Section 1001 by a fine of lot more than 510,000 or by imp-Asermr.c. cf rim II= the yeath or both. and thth requesting or obtaining any record(s) under false attains is punishable under the ymtvs cf5 U.S.C.TrthiX3) by a Ens ofnot mote 0en S5,000. Signature 4 Date alis Ac Name of individual who is the subject of the re=-44}sogat. Individual submitting a request under the Privacy Act of1974 must bc either "a citizen of the United States or an alien lawfully idmitted for permanent residence," pursuant to S USC Section 552-2(aX2). Rep-sits will be processed as Freedom of Information Act equests pursuant to 5 U.S.C. Section 552. rather thanPriTaw Act rear,:esus 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 dentification ofrecords relating to you. Without your social security number, the Department may be unable to locate any or all records ertaining to you. 4 Sipature of individual who is the subject of the record sougln. CIIRkl EFTA01699655 r 9 FD-3(.0 (Rev. 4-11-03) ailf44." File Number 31E -M4- l0Ster2/1Ot ta es(Wirdite .4 Field Office Acquiring Evidence govt. tr5 my tatl. Cr t& 3 Serial of Originating Document 58 P Date Rec 4". kgrit4Tir (Address) (City and Sure) 3A t To Be Retumed 0 Yes ZNo Receipt Given • 0 Yes ICJ No Grand Jury Material - Disseminate Only Pursoant to Rule 6 (e) Federal Rules of4limytal Procedure A Yes Federal Taxpayer Information (FTD A 0 No 0 Yes K No Reference: (Communication-Enclosing Material) Descri don: EFTA01699656 09/06/2006 20:41 FAX 5618021787 USA° WPB FL i3002 U.S. Department of Justice United States Attorney Southern District of Florida 500 South Australian Ave., Suite 400 West Palm Beach, FL 33401 (561)8204711 Facsimile: (S61) 820-8777 September 6, 2006 DELIVERY BY FACSIMILE est alm Beac F on. a Re: Federal Grand Jury Subpoena Dear EFTA01699657 09/06/2006 20:42 FAX 5618021787 USA° wps FL [d 009 AGE If you have any questions or concerns, please do not hesitate to call me. Thank you for your assistance. Sincerely, United States Attorney .341111111.1. fates Attorney cc: EFTA01699658 09/06/2006 20:42 FAX 5618021787 USAO APB FL O004 United States District Court DISTRICT OF FLORIDA SUBPOENA TO TESTIFY BEFORE GRAND JURY Mit EFTA01699659 09/06/2006 20:42 FAX 5618021787 USAO WPB FL IRJUus Page 1 832 P.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 patty 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=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 ef their state grand jury testimony. Rehearing and Rehearing En Bane 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(1) 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, llofiat, 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 pan. Sheppard, Jacksonville, Fla., for McQuaig. West Headnotes Lacy Mahon, Jr., Jacksonville, Ha., for appellants. [1] Criminal Law C=1023(3) Robert W. Merkle, Curds S. Fallgarter, M. Alan 110k1023(3) Ceballos, AssL 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 C=1023(3) Before TJOFLAT and KRAVITCH, 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 C:=I023(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 sti 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA01699660 09/06/2006 20:43 FAX 5618021787 IJSAO ¶VFB FL tN06 Page 2 832 F.2d 554 (Cite as: 832 F.2d 554, 955) 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: 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, bui stated that he was entitled to intervene because "state grand jury proceedings No criminal charges resulted from the state grand [are) secret and confidential by virtue of the • jury investigation. In August 1985, however, tbc 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 FN2. 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) (1935) 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 M. infra. their testimony. 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 parte 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). [FN1) 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 StateApormainnunnyentedlie 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 j$re refused to_emer the order characterizing the motions to quash, the United States filed a "Mori effort to obtain the testimony as a "fishing for Reconsideration of Opinion and Order" along yesaecj_k_nr ." with an ex pane 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 the purpose correctness of the government's motion for of Ifjurthering justice.' reconsideration, and stated that under ordinary circumstances it would not consider the motion. In In October 1986, the fedeSnant- issued a the court's view, however, denial of the motion subpoena duces tecurn 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 gnash the subpoena, arguing that disclosure of on the strength of the information contained in the gran—niity transcripts was unlawful under Florida 59 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 ti:r 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA01699661 09/06/2006 20:43 FAX 5618021787 _USA° WFB FL to 007 832 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. II 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 rime limit not to disturb well-established precedent forbidding for the motion was the ten-day limit of piecemeal review of grand jury prorppdings. 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.Q. 540, 84 L.Ed. 783 (1940), decided eighteen (1982 & Supp. 11 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 "(i)c is no less important to safeguard today, we do nor •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. II. at 327, 60 S. Cr. at 542; see also Di Bella v. United We first address the threshold issue whether we States. 369 U.S. 121, 124, 82 S.O. 654, 656-57, 7 have jurisdiction to hear this appeal. Although this L.Pd.2d 614 (1962) ("This insistence on finality and court granted the intervenors permission to appeal prohibition of piecemeal review discourage undue pursuant CO 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), cert. denied, 481 U.S. 1039, 107 S.D. 1979, 95 L.Erl.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[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 Juty 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. faucet, 461 controlling question of law' to civil cases only and, P.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."), cert. denied, no jurisdiction to heat this appeal pursuant to 440 U.S. 934, 99 5.O. 1277, 59 L.Ed.2d 492 section 1292(b) unless the district court's order (1979). 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA01699662 • 1.1.3.11.1 111'D es, RI 008 832 F.2d 554 Page 4 (Cite as: 832 F.2d 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 are ordinarily not to quash is a final order as far as appellants are appealable final orders under section 1291. The concerned. We therefore have jurisdiction to hear subpoenaed party can obtain review by refusing to their appeal. IFN3) comply with the subpoena and then contesting a contempt citation, which is immediately appealable. F143. We note that the only material sought from See United Stares V. Ryan. 402 U.S. 530, 532-33, the subpoenaed party in this ease is material that 91 S.Q. 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 nondisclosure with respect to materials in the records and a third party merely fears that custody of the subpoenaed parry. In such a case, privileged material may be disclosed along with the putative privilege-holder has no power to other, noaprivilegcd material. In the laner compel the subpoenaed party to incur a contempt situation, the case is nor ripe for appellate review 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 Ill. 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 foreve for review. Appellants raise several objections to r 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 'th at 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_ o Proceedings (Twist), 689 F.2d 1351 (11th Cir.1982) to prevent 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 person International Horizons, Inc., 689 F.2d 996 (11th al 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 Stares. 247 U.S. 7, 38 S.Ct. Perlman exception simply are not present. Here, 417, 62 L.Ed. 950 (1918), and confirmed in to the extent that their objections to disclosure are United 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 cannot argue that the subpoenaed party had no as to the injured third party who is otherw ise interest in seeking to vindicate their derivative powerless to prevent the revelation.' Fine, 641 rights. Indeed, the subpoenaed party--the State P.2d at 202. of FloridLas_r_qicesented-lay-the-State-Artorney— had as its p... y...itdergstMtanLction of its grand. [3] The circumstances supporting application of the jurLiystern. 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 privile ge need to preserve the integrity of the Florida grand of nondisclosure. The material with respect to jury. (P144] Nor does it give us jurisdiction to which they assert the privilege—transcripts of their review their procedural arguments. Thus, we state grand jury testimony—is in the custody of the do not pass upon the district court's disposition of e 2006 ThomsonfWest. No Claim to Orig. U.S. Govt. Works. EFTA01699663 uotim 11rD N., a 009 832 F.2d 554 Page 5 (Cite as: 832 F.2d 554, t559) 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 P114. We should emphasize that this discussion of a witness examined before the grand jury, or the relates only to appellants' right to appeal under the content, gist, or import thereof, except when such Perlman exception. It does not relate to their testimony is or has been disclosed in a court standing to nisc these claims before the district proceeding. When a court orders the disclosure of court. such testimony pursuant to subsection (1) for use in a criminal case, it may be disclosed to the The appellants' motions to intervene in the district prosecuting attorney of the court in which such court proceedings reveal the nature of the privilege criminal case is pending. and by him to his they assert. assistants, legal associates, and employees, and to. Appellant McQuaig's motion stated the defendant and his attorney, and by the la r to that "(p]rior to appearing before the [state] Grand his legal associates and employees. Jury, Mr. McQuaig was advised by the State disclosure is ordered by. a court pursuant to • Attorney that pursuant to Section 905.27, FIa.Stat. subsection (1) for use in a civil case, it may be (1985): a) none of the testimony he provided to the disclosed to all parties to the ease and to their Grand Jury was disclosable under the law; and b) attorneys and by the latter to their legal associates any disclosure of said testimony was a crime." and employees. However, the grand jury Appellant Green's motion stated that "[the] state testimony afforded such persons by the court can grand jury proceedings were secret and confidential only be used in the defense or prosecution of the by virtue of the provisions of Chapter 905 of civil or criminal case and for no other purpose the whatsoever. Florida Statutes." Appellant Godbold's motion stated that "testimony was provided with the (3) Nothing in this section shall affect the attorney- diem 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, by the client to the grand jury, any matters his 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 motion stated that "(t)he substantial interest involving the client received by or proffered to the of Don McClure is equal to or greater than that of grand jury in the client's presence. the two other parties previously allowed to intervene." (4) Persons convicted of violating this section shall be guilty of a misdemeanor of the first degree, In essence, then, appellants derive the punishable as provided in s. 775.083. or by fine privilege not exceeding 55,000. or both. they assert from the Florida statutory grand jury (5) A. violation of this section shall constitute secrecy requirement. The statute imposing that requirement provides as follows: criminal contempt of court. (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 "10560. any other person appearing before the grand jury shall be governed by the principles of the common shall not disclose the testimony of a witnes law as s they may be interpreted by the courts of the examined before the grand jury or other evidence United received by it except when required by a court to States in the light of reason and experience." The privilege appellants assert, as stated in disclose the testimony for the purpose of: their motions (a) Ascertaining whether it is consistent to intervene, is based solely on state law. [FN6] with the We acknowledge that some federal testimony given by the witness before the court; courts have recognized state law evidentiary privile (b) Determining whether the witness is guilty ges in 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, Fla.Srat. § 905.27 (1985). [FN5) 576 (E.D.N.Y.); cf. ACLU v. Finch, 638 F.2d 1336. 1342-45 (5th Cir. Unit A Mar. 1981). F145. The remainder of section 905.27 provides as follows: (2) It is unlawful for any person knowin P146. In their briefs, appellants suggest that the gly to privilege they assert has an independent basis in the publish, broadcast, disclose, divulge, • or communicate to any other person, or knowingly federal common law presumption of grand jury to secrecy. That presumption, which is codifi4'. 4 in O 2006 Thomson/West. No Claim to trig. U.S. Govt. Works. EFTA01699664 vvnv nav rid tgl 010 • .. 832 F.2d 554 Page 6 (Cite as: 832 F.2d 554, *560) Fed.R.Crint.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 stare grand jury merely to suit the purposes of the parties before it. testimony. [5] We need not apply any such balancing test Fbr7. Some Florida cases refer to the "privilege" 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 cannot law. We find no evidence that the Florida courts be used as the basis of a defamation action. See, derive an evidentiary privilege from F1a.Stat. § e.g., Stare v. Mika, 111 So.2d 716 905.27. Indeed, the Florida Supreme Court has (Fla.Dist.Q.App.19.59). 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. Stare a rel. Brown v. Dewell, 167 So. 637, 690 (Fla.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. (FN7j Accordingly, we conclude that END OF DOCUMENT 2006 Thomstut/West. No Claim to Orig. U.S. Govt. Works. EFTA01699665 we...4%v in. Id IL 1.* 0011 824 F.Supp. 330 Page 11 824 F.Supp. 330 (Cite as: 824 F.Supp. 330) C United States District COUR. 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 (5) Grand Jury C=036.3(1) production of state grand jury records as pan of 193)36.3(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 3601(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. [6] Grand Jury 0=36.4(1) West Mesdames 193k36.4(1) Custodian of records, who is proper party for [1] Grand Jury >` 25 service of federal grand jury subpoena. is person or 1931(25 entity who is in actual possession of documents Grand jury is to be afforded wide latitude in at 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) 1931(41.10 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. witnettes; 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. 1931(36.9(2) Federal grand jury subpoenas are presumed to be [8] Witnesses C=184(1) reasonable and party seeking to quash subpoena 4101(184(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 are generally disfavored in that privileges impede search for (4] Grand Jury C=36.4(2) truth. 193116.4(2) Federal grand jury was entitled to subpoena (9) Grand Jury C=36.3(2) transcripts and tapes of state grand jury testimony of /93136.3(2) police officers as part of investigation to determine When faced with claim that grand jury should whether officers violated federal criminal civil be denied evidence because of privilege, review rights laws during or after arrests; ing disputed court must weigh potential harm from disclos testimony was relevant and necessary to federal ure against benefits of disclosure. O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works . EFTA01699666 kg 012 824 F.Supp. 330 Page 12 (Cite ns: 824 F.Supp. 330, '31) *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...presented the case to an County Dist. Any., of counsel). Buffalo, NY. Erie County grand jury that considered whether the officers' actions-Cu— ring and after the arrest of Mr. Russell P. Buscaglia, Asst. U.S. Atty. (Dennis C. Aiken and Mr. Johnson constituted violations of Vacco, U.S. Any., 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 Prie County d jury derJined ARCARA, District Judge. charges against any of the police_tacers 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 recum, 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 panics were given an opportunity to a federaietareantedr 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 S, 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 federa l 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. (F141) 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 in camera submission of facts surrounding the federal grand jury investigation submitted by When these efforts Sd a ra the United States. was issued to the District Attorney's Offirp on October.2.), 1991 for the production of the grand The District Attorney's Office prosecuted Mr. jury transcripts or tapes of all witnesses who Arleen 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 Office, the return date was delayed until Januar During the state trial, only two of the six or more y 8, officers who were either involved in or witnessed 1992, in an effort to facilitate the resolution of this the incident in question actually testifie matter. d. 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 focus of the federal criminal civil rights the District Attorney filed the present motion to quash, raising four objections to the production of investigation. the state grand jury material. First, the District Attorney argues that compliance would be it> 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA01699667 wo, vvtionoto CV.40 CAA 00104141,0/ USAU 013 YL 824 F.Supp. 330 Page 13 (Cite as: 824 F.Supp. 330, *332) 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.Q. 722, 726, States has set forth in some detail, both in its motion 112 L.Ed.2d 795 (1991); United Stares 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). PA 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 funds that the statements of S.Q. 2646, 2667, 33 L.Ed.2d 626 (1972) (quoting the police officers and other witnesses who testified United Sixes v. •Stone, 429 F.2d 138, 140 (24 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 Saks Tax Records, 382 F.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. 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 specific 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 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 S.Ct. 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 68S, 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. 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. Enters., 493 U.S. at 300-02, 111 S.Q. at 728. States. Be contends that the only way the United States can gai6 access to these materials is to file a *333 In this case, the District Attorney contends motion in state court _p_iusuant to that compliance with the subpoena would be Y.0 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. EFTA01699668 • VI u4Au ern eh 1.0 014 824 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 TCCILM, 502 F.Supp. 576, 579-80 (E.D.La.1980); grand juries from obtaining the records through a United States v. Grand Jury Investigation, 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 (24 Cir.I979), 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.Prociaw § 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 saved on the The courts in these cases explicitly rejected the presiding state court judge rather than the District argument that compliance was unreasonable because Attoriaey. 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 stare 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 Jon. 21, 1975, 541 P.24 373, 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 934 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 Imowledge 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 Clause, have similarly rejected claims from state is 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 confidentialit y 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 . EFTA01699669 0 V . uariv CI. ItS 015 824 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 S78. 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 fray 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 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.O. 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.5.2d 763, privilege," In re Bevil!, Bressler & Schulman Asset ord. 51 Misc.2d 263, 272 *335 N.Y.S.2d 412, Management Corp., 805 F.2d 120, 126 (3d cen. 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 S.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 undemtned 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 Tar 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.2d 404, 407-08 (5th Cir.1976), cen. denied, As fully explained in the United States' in camera 429 U.S. 940, 97 S.Q. 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 t6 the grand jury investigation and arc 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. 46S 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 CS 2006 ThornsonfWest. No Claim to Orig. U.S. Govt. Works. EFTA01699670 a.“.• • Ws a ran VV.I.VILILL I 0 J Vaal) _urn et, 0016 824 F.Supp. 330 Page 16 (Cite as: 824 F.Supp. 330, 935) 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 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 Empcutekd 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 936 that the subpoena is unreasonable or that it END OF DOCUMENT @ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA01699671 +15:112 $2.31 SEP 212006 US POSTAGE FIRST CLASS MAILED FROM 33401 011A04130012T7 CIRCUIT COURT CRIMINAL DIVISION P.O. Box 2906 West Palm Beach, FL 33402-2906 es a m eac , -6235 SHARON R. BOCK Clerk & Comptroller Palm Beach County ..r "7"tier.an EFTA01699672 1 61 e-t-fm-loroia-mia EFTA01699673 ENVELOPE EMPTY Official Do EFTA01699674